CASE LAW DRAFT NO. 18/2024 On the determination of land prices as a basis for compensation in eminent domain (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 18/2024

On the determination of land prices as a basis for compensation in eminent domain

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Appellate Administrative Judgment No. 427/2019/HC-PT dated July 9^th, 2019, of the High People’s Court in Hồ Chí Minh City regarding the case of “Complaint of administrative decision regarding eminent domain, compensation, and support during eminent domain” between the plaintiff, Mr. Trần Văn H, and the defendants, the People’s Committee of Bình Dương Province and the People’s Committee of T Town, Bình Dương Province.

Location of the Case Law’s Content:

Paragraphs 6 and 7 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

The competent authority issued a decision on eminent domain and approved the budget for compensation, support, and resettlement for those whose land was seized, but delayed in publishing and delivering these decisions to the affected land users. At the time of publication and delivery of these decisions, the land price had changed, leading the affected land users to disagree with the compensation land price at the time of the issuance of the eminent domain decision and the approval of the compensation budget.

– Legal Resolution:

In this case, the Court must determine the land price to be used as the basis for compensation to the affected land users as the land price at the time of the actual eminent domain action was carried out.

Relevant Legal Provisions:

– Article 11, Clause 2, Article 14 of Decree No. 69/2009/ND-CP dated August 13^th, 2009, of the Government…

– Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, of the Ministry of Natural Resources and Environment…

Keywords:

“Eminent domain decision”, “Determination of land prices for compensation for affected land users”…

CASE DETAILS

The plaintiff’s counsel and the plaintiff, Mr. Trần Văn H, stated the following:

Mr. Trần Văn H’s family had 2,899 m² of land seized for the BOT DT-747B project, the section through Khánh Bình Commune (now K Ward), T District (now T Town). The section from the Miếu Ông Cù intersection to the Thủ Biên – Cổng Xanh road intersection was implemented from 2010.

At the first meeting on December 18^th, 2014, Mr. Trần Văn H did not agree to the compensation payment request and was handed the following documents:

– Decision No. 9858/QĐ-UBND, dated October 3^rd, 2012, of the People’s Committee of T District (now T Town), approving the compensation, support, and resettlement plan for the project: upgrading and expanding DT 747B road from Miếu Ông Cù intersection to Thủ Biên – Cổng Xanh road intersection.

– Decision No. 10492/QĐ-UBND, dated October 16^th, 2012, regarding compensation, support, and resettlement for Mr. Trần Văn H and Mrs. Hà Thị P, residing in B quarter, T Ward, T Town, Bình Dương Province.

Mr. Trần Văn H did not agree to receive the compensation payment, as the Land Development Center of T Town had conducted the clearance, compensation, and support for his 2,899.2 m² of land in violation of the legal regulations on clearance, compensation, and support for resettlement during eminent domain. On December 24^th, 2014, Mr. H filed a complaint regarding the compensation and support price applied to his 2,899.2 m² of land to the People’s Committee of T Town.

On April 10^th, 2015, the Land Development Center of T Town held a dialogue to resolve Mr. Trần Văn H’s complaint. On May 29^th, 2015, the People’s Committee of T Town issued Dispatch No. 3131/UBND-TD responding to Mr. Trần Văn H’s complaint with the same conclusion as the dialogue results, stating that the Land Development Center had correctly compensated and supported the 2,899.2 m² of land seized from Mr. H according to the regulations. Specifically:

Regarding the comment on why it took more than two years from the land inspection to issue the compensation decision and price list to Mr. Trần Văn H, while the Decision clearly stated that Mr. Trần Văn H had the right to file a complaint within 90 days: This was due to insufficient funds allocated for the Project from October 2012 to November 2014 to pay compensation to the public, so Mr. Trần Văn H was not invited to receive the decision and the compensation payment.

According to Clause 3, Article 2 of Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District, Mr. Trần Văn H and Mrs. Hà Thị P had the right to file a complaint against this decision within 90 days from the date of receiving the decision.

Mr. Trần Văn H received the compensation decision on December 18^th, 2014. Therefore, the statute of limitations for complaining about Decision No. 10492/QĐ-UBND dated October 16^th, 2012, is calculated from the date Mr. Trần Văn H signed and received Decision No. 10492/QĐ-UBND (December 18^th, 2014).

Regarding the procedures and methods of eminent domain and compensation, the Land Development Center complied with the procedures stipulated in Article 46 and Article 47 of Decision No. 87/2009/QĐ-UBND dated December 21^st, 2009, of the People’s Committee of B Province. During the implementation process, the Land Development Center of T Town coordinated with the People’s Committee of K Ward to publicly announce and post the Compensation Plan.

Mr. Trần Văn H requested a reassessment of the land price and the Compensation Plan No. 9858/QĐ-UBND dated October 3^rd, 2012, but it was only handed to him on December 18^th, 2014. This request was unfounded for consideration because the Compensation Plan approved by Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of the district (now town) was publicly posted in accordance with the proper procedures.

The compensation price in the Compensation Plan was implemented in accordance with Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, of the Ministry of Natural Resources and Environment: “…the land price according to the current use purpose of the type of land being seized is stipulated and announced by the Provincial People’s Committee on January 1^st annually…”.

Regarding the suggestion to adjust the land price to market value or to propose that the investor and local authorities provide alternative land of equivalent value and usage:

According to Clause 2, Article 14 of Decree No. 69/2009/ND-CP dated August 13^th, 2009, of the Government, it is stipulated that “the State shall condemn land being used by individuals for any purpose and shall compensate by granting new land with the same usage purpose. If there is no land available for compensation, compensation shall be in the form of the land use right value calculated at the land price at the time of the eminent domain decision.”

Since the local authority did not have land available for compensation, households whose land was seized for the DT-747B road upgrade and expansion project from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road were compensated by the land use right value calculated at the land price at the time of eminent domain. Therefore, Mr. Trần Văn H’s request to exchange land of equivalent value and usage was not feasible.

Mr. Trần Văn H disagreed with the resolution provided by the People’s Committee of T Town in Dispatch No. 3131/UBND-TD dated May 29^th, 2015, and requested a formal complaint resolution. On September 6^th, 2016, Mr. Trần Văn H filed a complaint against Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town, requesting:

The annulemntof DispatchNo. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town regarding the rejection of his complaint.
The People’s Committee of T Townto deliver the eminent domaindecision to him in accordance with the legal procedures.
The annulment of Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District(now T Town) regarding the approval of compensation, support, and resettlement funds, and to re-determine the compensation land price according to the market price at the time the People’s Committee of T Townhanded over the eminent domain decision to him (compensation land price at the time of eminent domain) or exchange for another piece of land of equivalent location, usage purpose, and value.

On December 30^th, 2015, the Chairman of the People’s Committee of T Town issued Decision No. 6465/QĐ-UBND rejecting Mr. Trần Văn H’s complaint, upholding Dispatch No. 3131/UBND-TD dated May 29^th, 2015, from the People’s Committee of T Town and Decision No. 10492/QĐ-UBND dated October 16^th, 2012, from the People’s Committee of T District (now T Town) regarding the approval of compensation, support, and resettlement costs, with the following content:

Regarding the procedure for eminent domain, compensation, and support: The People’s Committee of T Town followed the correct procedures and regulations as stipulated in Articles 46 and 47 of Decision No. 87/2009/QĐ-UBND dated December 21^st, 2009, of the People’s Committee of B Province.

During the implementation process, the departments of T Town coordinated with the People’s Committee of K Commune to organize public meetings to disclose the compensation plan and publicly post the compensation plan as per regulations.

Regarding the compensation and support prices: Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of T District approved the compensation, support, and resettlement plan for the project to upgrade and expand DT 747B road from the intersection with Thủ Biên – Cổng Xanh road (Phase 1: Section from Khánh Vân bridge to Nam Tân Uyên industrial park in K Commune, T District, Bình Dương Province).

The compensation and support prices for land were applied according to Decision No. 66/2011/QĐ-UBND dated December 20^th, 2011, which issued the land price list for 2012, and Decision No. 67/2011/QĐ-UBND dated November 20^th, 2011, of the People’s Committee of Bình Dương Province, which issued the land price adjustment coefficient (K) for 2012 in Bình Dương Province.

For sections with a clearance range beyond 19 meters (measured from the road centerline), agricultural land was supported at 70% of the residential land price according to Dispatch No. 492/UBND-KTN.

Accordingly, the compensation unit price for perennial crop land for Mr. Trần Văn H and Mrs. Hà Thị P was VND 168,000/m², agricultural land in plot No. 68 was supported at 70% of the residential land price for an area of 521.5 m², agricultural land was supported at 50% of the residential land price for an area of 875.5 m², and the adjusted route was supported at 70% of the residential land price for an area of 103 m².

The total support analysis was based on 5 times the residential land allocation limit (5 times x 300 m² = 1500 m²) according to the approved compensation, support, and resettlement plan in Decision No. 9858/QĐ-UBND.

Regarding Mr. Trần Văn H’s request to exchange land for another plot with the same location, usage purpose, and equivalent value: Since this is a project to upgrade and expand DT 747B road, the affected land areas for households were small, the remaining land area ensured housing construction and livelihood restoration, and the number of households completely losing their land was very few.

Therefore, the project to upgrade and expand DT 747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road was compensated based on the land use right value calculated according to the land price at the time of the eminent domain decision, which is in accordance with Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government.

Dissatisfied with the People’s Committee of T Town’s resolution of his complaint, on February 7^th, 2017, Mr. Trần Văn H filed a complaint against Decision No. 6546/QĐ-UBND dated December 30^th, 2016, of the Chairman of the People’s Committee of T Town to the Chairman of the People’s Committee of B Province. On October 11^th, 2017, the Chairman of the People’s Committee of B Province issued Decision No. 2731/QĐ-UBND, dismissing Mr. Trần Văn H’s complaint with the following contents:

Mr. Trần Văn H’s request for direct delivery of the eminent domain decision was unfounded because the Project for upgrading and expanding the DT 747B road section from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road was approved by the Provincial People’s Committee in the overall Project under Decision No. 2998/QĐ-UBND dated October 13^th, 2011, based on Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government,

which does not stipulate direct delivery of the eminent domain decision, but only requires sending the compensation, support, and resettlement decision to those whose land is being condemned. However, to ensure transparency and inform the public,

the competent authorities of T District invited Mr. Trần Văn H and Mrs. Hà Thị P twice, but they did not attend, and the People’s Committee of K Ward recorded this in the minutes and publicly posted the list of households with land condemned, along with the eminent domain decision at the headquarters of the People’s Committee of K Ward.

Regarding Mr. Trần Văn H’s request for compensation for 2028.2 m² of land at market value at the time the People’s Committee of T Town handed over the eminent domain decision or exchange for another piece of land with equivalent usage purpose and location,

there is no basis for consideration because the People’s Committee of T District set the compensation price for Mr. Trần Văn H and Mrs. Hà Thị P according to the compensation plan approved by Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, and this plan does not stipulate land exchange. Furthermore, the local authority has no land fund for exchange.

The People’s Committee of T Town and the People’s Committee of B Province’s handling of the complaint and the compensation procedures regarding Mr. Trần Văn H’s land use rights were illegal, specifically:

Regarding the compensation and condemnation procedures:

The Land Development Center of Tân Uyên Town did not comply with legal regulations on compensation procedures.

According to Articles 30 and 31 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government on eminent domain, compensation, support, and resettlement; and Articles 46 and 47 of Decision No. 87/2009/QĐ-UBND dated December 21^st, 2009, of the People’s Committee of B Province on policies, procedures, and methods for compensation, support, and resettlement during eminent domain in Bình Dương Province,

the compensation plan must be publicly announced and posted for comments from those whose land is being condemned and related parties before submission to the Department of Natural Resources and Environment for appraisal.

After the compensation, support, and resettlement plan is approved, within three working days from the receipt of the plan, the compensation and site clearance organization must coordinate with the commune-level People’s Committee to disseminate and publicly post the approved plan at the commune-level People’s Committee office and community living places where the land is condemned;

send the compensation, support, and resettlement decision to those whose land is being condemned, clearly stating the compensation and support amount, resettlement arrangement (if any), the time and place for compensation payment, and the time to hand over the condemned land to the compensation and site clearance organization.

However, from the project’s commencement in 2011 until December 18, 2014, Mr. Trần Văn H was only invited to receive compensation more than two years later.

Additionally, Mr. Trần Văn H was not notified by the Land Development Center of Tân Uyên Town, the People’s Committee of K Commune (now K Ward), or any competent authority to attend the announcement of the approved compensation, support, and resettlement plan or to receive the eminent domain decision, the decision approving the compensation, support, and resettlement funds.

Consequently, Mr. Trần Văn H could not understand how his land use rights were being compensated and could not protect his rights in compliance with the general policy of the local authority. According to the aforementioned legal regulations, Mr. Trần Văn H is entitled to participate in commenting on the compensation, support, and resettlement plan, to be informed about the approved plan, and to receive the decision approving the compensation, support, and resettlement funds within three working days from the date of approval.

Decision No. 6465/QĐ-UBND dated December 30^th, 2016, of the Chairman of the People’s Committee of T Town and Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province on resolving Mr. Trần Văn H’s complaint stated that Mr. Trần Văn H had been invited to the People’s Committee of K Ward to announce and hand over the eminent domain decision according to Invitation Letter No. 112/GM-TN&MT.

However, Mr. Trần Văn H did not attend, so the minutes were posted. The responses from the Chairman of the People’s Committee of T Town and the Chairman of the People’s Committee of B Province were entirely false.

Mr. Trần Văn H was extremely frustrated because in Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the Chairman of the People’s Committee of T Town and in previous dialogues on April 10^th, 2015, it was clearly recorded that the compensation and support decision for Mr. Trần Văn H was approved in October 2012, but he was not invited to receive the decision and compensation until December 18^th, 2014, because from October 2012 to November 2014, the project’s allocated funds were insufficient to pay compensation to the people.

Therefore, he was not invited to receive the decision and compensation.

The compensation, clearance, and resettlement support plan is illegal, specifically: Section 5, which stipulates support policies, limits the scope of support for those whose land is being condemned to only the clearance area from 10m to 19m.

This is contrary to the regulations under Article 21 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government; Article 34 of Decision No. 87/2009/QĐ-UBND dated December 21^st, 2009, of the People’s Committee of B Province, which stipulates support for agricultural land within residential areas, garden land, and ponds not recognized as residential land.

These regulations do not permit the People’s Committee of T District to limit or restrict the scope of support for clearance. On the contrary, the above regulations stipulate that, in addition to being compensated according to the agricultural land price, support is provided for the entire area, not exceeding five times the residential land allocation limit at the time of condemnation.

Decision No. 8483/QĐ-UBND dated August 23^rd, 2012, of the People’s Committee of T District regarding eminent domain, and Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District (now T Town) approving compensation, support, and resettlement funds for Mr. Trần Văn H with a total amount of VND 1,518,515,550, are illegal.

These decisions were issued based on unlawful grounds and fraudulent records. The accompanying minutes of land and asset inventory on the land dated December 28^th, 2011, were not provided to Mr. Trần Văn H. He did not receive the asset inventory record or the land position status map of his land being cleared, nor was the boundary of the cleared land identified.

Therefore, it is unclear how the area of the cleared land was determined for condemnation and compensation calculation. Additionally, the compensation pricing document No. 61/TTPTQĐ-KT, dated August 13^th, 2012, was issued before the People’s Committee of T District made the eminent domain decision for Mr. Trần Văn H on August 23^rd, 2012.

Thus, through the process of implementing the entire land use rights compensation for Mr. Trần Văn H by the Land Development Center of T Town, as analyzed above, it is evident that the compensation and clearance procedures and the compensation for land use rights for Mr. Trần Văn H were entirely unlawful.

Compensation price:

The issue that only more than two years later (on December 18^th, 2014), Mr. Trần Văn H received Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District approving the compensation funds and the compensation pricing document.

The Land Development Center of T Town and the People’s Committee of T Town both responded to Mr. Trần Văn H that the complaint period is calculated from the date he received the decision, which is December 18^th, 2014.

Therefore, Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District and the Land Development Center of T Town took effect from December 18^th, 2014, and because this is an administrative decision applied to Mr. Trần Văn H, it naturally became effective when he received the decision on December 18^th, 2014.

This decision had no legal value when the People’s Committee of T District issued it and the Land Development Center of Tân Uyên Town stored it without delivering it to Mr. Trần Văn H.

Thus, according to Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, of the Ministry of Natural Resources and Environment, “the land price for compensation is the land price according to the purpose of use of the condemned land, as prescribed and announced by the provincial People’s Committee on January 1 every year.”

Therefore, the land price for compensation for Mr. Trần Văn H should be the 2015 land price. However, Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District applied the land price at the 2012 rate.

Moreover, according to Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government, the compensation price is the land price at the time of the eminent domain decision. Currently, Mr. Trần Văn H has not received the eminent domain decision from the Land Development Center of Tân Uyên Town or the People’s Committee of T Town. Therefore, Mr. Trần Văn H’s request for compensation at the land price at the time of compensation (the time of eminent domain) is grounded and in accordance with the law.

According to Clause 1, Article 11 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government; Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, stipulating the land price for compensation and determining the land price in certain specific cases, if the land price at the time of eminent domain does not reflect the actual market transfer price of land use rights under normal conditions,

the provincial People’s Committee shall base the land price on the actual market transfer price of land use rights to determine a specific land price accordingly or assign a competent authority to re-determine a specific land price to decide the compensation land price appropriately and not limited by the framework of land price regulations.

Thus, the Project for upgrading and expanding the DT 747B road was approved in 2010 and implemented from the end of 2011, but it was not until more than two years later, on December 18^th, 2014, that the Land Development Center of T Town handed over the approved compensation and support funds decision to proceed with compensation for Mr. Trần Văn H.

Therefore, the delay in executing the compensation for Mr. Trần Văn H, resulting in him having to file complaints requesting compensation at the market price at the time of compensation, is the fault of the Land Development Center of T Town and the People’s Committee of T District. Thus, Mr. Trần Văn H’s request for compensation at the market price at the time of compensation (the time of eminent domain) is entirely justified.

In case the local authority does not have the land fund to exchange for Mr. Trần Văn H, it is necessary to consider adjusting and advising the provincial People’s Committee to have a plan to re-appraise the land price for timely compensation to the people, minimizing damages to the people due to delayed compensation.

The fault belongs to the People’s Committee of T Town, but the People’s Committee of B Province and the People’s Committee of T Town resolved the complaint by affirming that the clearance and compensation for Mr. Trần Văn H were in accordance with regulations to evade responsibility, causing frustration and eroding public trust in the local administrative management authorities, leading to prolonged complaints.

Based on the above information, it is evident that the People’s Committee of T Town’s compensation and clearance of Mr. Trần Văn H’s land use rights were illegal. However, the Chairman of the People’s Committee of the district (now T Town) and the Chairman of the People’s Committee of B Province resolved Mr. Trần Văn H’s complaint by continuing to affirm that the compensation and clearance of his land use rights were in accordance with the law.

Therefore, Mr. Trần Văn H filed a lawsuit against the People’s Committee of T Town at the Bình Dương Provincial People’s Court, requesting the Court to resolve the following:

– Annul Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of T District, Bình Dương Province, regarding the approval of the compensation, support, and resettlement plan for the project: upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (Phase 1: from Khánh Vân Bridge to the end of Nam Tân Uyên Industrial Park within the boundaries of K Commune (now K Ward), T District (now T Town), Bình Dương Province).

– Annul Decision No. 8493/QĐ-UBND dated August 23^rd, 2012, of the People’s Committee of T Town, Bình Dương Province, regarding eminent domain.

– Annul Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T Town, Bình Dương Province, regarding compensation, support, and resettlement.

– Annul Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town, Bình Dương Province, responding to Mr. Trần Văn H’s petition.

– Annul Decision No. 6465/QĐ-UBND dated December 30^th, 2015, of the Chairman of the People’s Committee of T Town, Bình Dương Province, regarding the resolution of Mr. Trần Văn H’s complaint (first time).

– Annul Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province regarding the resolution of Mr. Trần Văn H’s complaint (second time).

Mr. Trần Văn H agreed with the statements of his counsel. Mrs. Hà Thị P also agreed with the statements of Mr. H’s counsel.

In the statement of the legal representative of the defendant, the People’s Committee of T Town, the Chairman of the People’s Committee of T Town, Mr. Ngô Quang S, stated the following:

Regarding the legal basis and procedures for compensation for the project of upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road:

– On September 20^th, 2010, the People’s Committee of T District (now T Town) issued Notice No. 277/TB-UBND on eminent domain to implement the DT 747B provincial road project, Bình Chuẩn – Hội Nghĩa section.

– On October 13^th, 2011, the People’s Committee of B Province issued Decision No. 2998/QĐ-UBND approving the overall compensation, support, and resettlement project for upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road.

– On May 3^rd, 2012, the People’s Committee of T District (now T Town) issued Notice No. 201/TB-UBND adjusting Notice No. 277/TB-UBND dated September 20^th, 2010, of the People’s Committee of T District regarding eminent domain to implement the DT 747B provincial road project, Bình Chuẩn – Hội Nghĩa section.

– On October 27^th, 2011, the Land Development Center, in coordination with the People’s Committee of K Commune (now K Ward), held a public meeting on the overall compensation, support, and resettlement project for upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road in K Commune (now K Ward).

– On December 28^th, 2011, the Branch of the Land Development Center, in coordination with the People’s Committee of K Commune (now K Ward), inventoried the land and assets attached to the land for Mr. Trần Văn H. On August 13^th, 2012, the Land Development Center applied compensation pricing and support for Mr. Trần Văn H with a total amount of VND 1,518,515,550 (One billion five hundred eighteen million five hundred fifteen thousand five hundred fifty đồng).

– On May 10^th, 2012, and May 11^th, 2012, the Branch of the Land Development Center, in coordination with the People’s Committee of K Commune (now K Ward), held a public meeting on the draft compensation, support, and resettlement plan for the project of upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (K Commune section).

This was publicly posted at the office of the People’s Committee of K Ward and the neighborhood offices where the land was affected by the project from May 11^th, 2012, to May 31^st, 2012 (attached with the meeting minute).

– On June 5^th, 2012, the Branch of the Land Development Center, in coordination with the People’s Committee of K Commune (now K Ward), concluded the public posting of the compensation, support, and resettlement plan for the project of upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (K Ward section). This was done during the period from May 11^th, 2012, to May 31^st, 2012.

– On August 23^rd, 2012, the People’s Committee of T District (now T Town) issued Decision No. 8493/QĐ-UBND regarding eminent domain for Mr. Trần Văn H and Mrs. Hà Thị P, residing in B Neighborhood, T Ward, T Town, Bình Dương Province.

– On October 3^rd, 2012, the People’s Committee of T District (now T Town) issued Decision No. 9858/QĐ-UBND approving the compensation, support, and resettlement plan for the project of upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (Phase 1: from Khánh Vân Bridge to the end of Nam Tân Uyên Industrial Park within the boundaries of K Commune, T District, Bình Dương Province).

– On October 10^th, 2012, the Branch of the Land Development Center, in coordination with the People’s Committee of K Commune (now K Ward), publicly posted Decision No. 9858/QĐ-UBND approving the compensation, support, and resettlement plan for the project of upgrading and expanding DT 747B road from the Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road

(Phase 1: from Khánh Vân Bridge to the end of Nam Tân Uyên Industrial Park within the boundaries of K Commune, T District, Bình Dương Province) at the office of the People’s Committee of K Commune (now K Ward) and the neighborhood offices where the land was affected by the project.

Regarding the compensation and support for Mr. Trần Văn H and Mrs. Hà Thị P:

Mr. Trần Văn H and Mrs. Hà Thị P have land plots located within the project for upgrading and expanding ĐT 747B road, from Miếu Ông Cù intersection to Thủ Biên – Cổng Xanh intersection, as follows:

+ Plot No. 160, with an area before condemnation of 378m², and Plot No. 23, with an area before condemnation of 1,113m², Map No. 33 in Khánh Bình Commune, classified as CLN land, was granted a Land Use Rights Certificate by the People’s Committee of T District (now T Town) under No. H 04029 on August 4^th, 2008.

+ Plot No. 68, with an area before condemnation of 1,728m², Map No. 33 in Khánh Bình Commune, classified as ONT+CLN land, was granted a Land Use Rights Certificate by the People’s Committee of T District (now T Town) under No. H 04041 on August 4^th, 2008.

+ Plot No. 337, with an area before condemnation of 2,557m², Map No. 33 in Khánh Bình Commune, classified as CLN land, was granted a Land Use Rights Certificate by the People’s Committee of T District (now T Town) under No. H 04040 on August 4^th, 2008.

On August 23, 2012, the People’s Committee of T District (now T Town) issued Decision No. 8493/QĐ-UBND to condemn an area of 2,028.2m², part of plots No. 160, 337, 68, and 23, Map No. 33 in Khánh Bình Commune, belonging to Mr. Trần Văn H and Mrs. Hà Thị P, who reside in B Quarter, T Ward, T Town, Bình Dương Province, to carry out the project for upgrading and expanding ĐT 747B road from Miếu Ông Cù intersection to Thủ Biên – Cổng Xanh intersection, recovering CLN land: 2,028.2m².

On September 19^th, 2012, the Natural Resources and Environment Department of T District invited Mr. Trần Văn H and Mrs. Hà Thị P (per Invitation No. 112/GM-TN&MT) to the Khánh Bình Commune People’s Committee to announce and deliver the eminent domain decision.

At the meeting, the Khánh Bình Commune People’s Committee recorded that the households, including Mr. Trần Văn H and Mrs. Hà Thị P, did not attend. On the same day, the Khánh Bình Commune People’s Committee made a record of public posting, listing households with condemned land along with the condemnation decisions (Meeting Minutes dated September 26^th, 2012).

On October 19^th, 2012, the Natural Resources and Environment Department of T District again invited Mr. Trần Văn H and Mrs. Hà Thị P to the Khánh Bình Commune People’s Committee to announce and deliver the eminent domain decision (per Invitation No. 112/GM-TN&MT, 2nd time). However, Mr. Trần Văn H and Mrs. Hà Thị P did not attend as invited.

Assets attached to the land within the clearance area include four nacre trees (diameter > 20) as recorded in the Inventory Minutes No. 316/BBKK on December 28^th, 2011, by the Land Development Center.

The Land Development Center appraised the compensation and support for Mr. Trần Văn H and Mrs. Hà Thị P as follows:

+ Compensation for CLN land: 2,028.2m² x VND 168,000/m² = VND 340,737,600

+ Support for line adjustment land: 103m² x VND 941,850/m² = VND 97,010,550

+ Support for agricultural land (70%): 521.5m² x VND 941,850/m² = VND 491,174,775

+ Support for agricultural land (50%): 875.5m² x VND 672,750/m² = VND 588,992,625

+ Compensation for trees: VND 600,000

=> Total compensation and support amount: VND 1,518,515,550

On October 16^th, 2012, the People’s Committee of T District (now T Town) issued Decision No. 10492/QĐ-UBND on compensation, support, and resettlement for Mr. Trần Văn H and Mrs. Hà Thị P with a total amount of VND 1,518,515,550. This includes:

+ Compensation for land: VND 340,737,600

+ Support for land: 1,177,177,950 VND

+ Compensation for trees: VND 600,000

On December 18^th, 2014, the Land Development Center announced and delivered Decision No. 10492/QĐ-UBND dated October 16^th, 2012, to Mr. Trần Văn H.

On March 21^st, 2016, the People’s Committee of T Town issued Notice No. 187/TB-UBND dated March 21^st, 2016, regarding receiving compensation money and handing over condemned land.

On March 24^th, 2016, the Land Development Center, in coordination with the Khánh Bình Commune People’s Committee, announced and delivered the above Notice to Mr. Trần Văn H. As a result, Mr. H received the Notice but did not agree with the compensation price and was filing a complaint with the Provincial People’s Committee, requesting a dialogue with the Chairman of the People’s Committee of T Town.

Regarding the resolution of the complaint:

On December 24^th, 2014, Mr. Trần Văn H filed a complaint to review the compensation and support price for his 2,899.2m² of land condemned under Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, within the project for upgrading and expanding ĐT 747B road from Miếu Ông Cù intersection to Thủ Biên – Cổng Xanh intersection.

On May 29^th, 2015, the People’s Committee of T Town issued Dispatch No. 3131/UBND-TD responding to Mr. Trần Văn H’s complaint as follows:

+ Regarding the delay of over two years in presenting the compensation decision and price table while the decision stated that he had the right to appeal within 90 days: The delay was due to insufficient funds allocated for the project from October 2012 to November 2014 to pay compensation to the residents, so Mr. Trần Văn H was not invited to receive the decision and compensation money.

Regarding the complaint period: Clause 3, Article 2 of Decision No. 10492/QĐ-UBND dated October 16^th, 2012, by the People’s Committee of T District stipulates that Mr. Trần Văn H and Mrs. Hà Thị P have the right to appeal this decision within 90 (ninety) days from the date of receipt. Mr. Trần Văn H received the compensation decision on December 18^th, 2014.

Therefore, the complaint period for Decision No. 10492/QĐ-UBND dated October 16, 2012, is calculated from the date Mr. Trần Văn H signed and received Decision No. 10492/QĐ-UBND (December 18^th, 2014).

+ Regarding the procedures for eminent domain and compensation, support: The Land Development Center followed the procedures stipulated in Articles 46 and 47 of Decision No. 87/2009/QĐ-UBND dated December 21^st, 2009, by the Provincial People’s Committee. During the implementation, the Land Development Center coordinated with the Khánh Bình Commune People’s Committee to hold public meetings on the compensation plan and publicly posted the compensation plan (with meeting minutes and public posting records).

+ Mr. Trần Văn H requested a revaluation of the land price, and a review of the compensation and support plan under Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, but only received it on December 18^th, 2014, which is not a basis for consideration as the compensation and support plan was publicly posted following proper procedures;

the compensation and support prices were implemented correctly according to Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, by the Ministry of Natural Resources and Environment: “The land price for compensation is the price of the land according to the purpose of current use of the land to be condemned, as prescribed and announced by the provincial People’s Committee on January 1^st each year.”

Regarding the suggestion that if land prices cannot be adjusted according to market prices, the investor and local authorities should have a plan to exchange land with the same usage purpose and equivalent value:

According to Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government, it is stipulated: “The State condemns land from users for any purpose, then compensates by allocating new land with the same usage purpose; if there is no land for compensation, then compensation is made by the value of land use rights calculated according to the land price at the time of the eminent domain decision.”

Since the locality does not have land funds for compensation, households whose land is condemned for the project to upgrade and expand DT-747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road are compensated by the value of land use rights calculated according to the land price at the time of the eminent domain decision. Mr. Trần Văn H’s request to exchange land with the same usage purpose and equivalent value cannot be fulfilled.

Thus, the compensation and support for the 2899.2 m² of land condemned from Mr. Trần Văn H is in accordance with the regulations.

On September 6^th, 2016, the People’s Committee of T Town organized a meeting and dialogue with Mr. Trần Văn H regarding several issues related to eminent domain, compensation, support, and site clearance to implement the project to upgrade and expand DT-747B road. The result required Mr. Trần Văn H to submit a petition to the Citizen Reception Committee of the town to receive a receipt and resolve it according to regulations.

On November 18^th, 2016, the Department of Natural Resources and Environment organized a meeting and dialogue with Mr. Trần Văn H. The result of the dialogue was that Mr. Trần Văn H did not agree with the previous eminent domain decisions and only agreed to receive the new decisions issued in 2015. If the new decisions of 2015 are not issued, he requested the prompt issuance of the first complaint resolution decision so that he has the right to appeal to the competent authority.

On December 30^th, 2016, the Chairman of the People’s Committee of T Town issued Decision No. 6465/QĐ-UBND to resolve Mr. Trần Văn H’s complaint (first time), with the content:

+ Rejecting Mr. Trần Văn H’s complaint regarding the consideration of annulling Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town; canceling Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District; re-determining the compensation land price according to the market price at the time the People’s Committee of T Town handed over the eminent domain decision or exchanging land with the same location, usage purpose, and equivalent value.

+ Upholding Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town, and Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T District.

On February 17^th, 2017, the Chairman of the People’s Committee of B Province issued Decision No. 371/QĐ-UBND assigning the task of verifying the complaint content, assigning the Provincial Inspectorate to clarify the complaint content of Mr. Trần Văn H.

On March 9^th, 2017, and April 17^th, 2017, the Provincial Inspectorate organized meetings with the People’s Committee of T Town regarding several issues related to the complaint content of Mr. Trần Văn H.

On October 11^th, 2017, the Chairman of the People’s Committee of B Province issued Decision No. 2731/QĐ-UBND to resolve Mr. Trần Văn H’s complaint against Decision No. 6465/QĐ-UBND dated December 30, 2016, of the Chairman of the People’s Committee of T Town (second time).

Based on the above grounds and content, it shows that the compensation and support for Mr. Trần Văn H and Mrs. Hà Thị P are in accordance with the approved compensation plan and regulations. The Chairman of the People’s Committee of T Town issued Decision No. 6465/QĐ-UBND dated December 30^th, 2016, in accordance with the law. Therefore, the People’s Committee of T Town requests the People’s Court of B Province to consider and resolve the case according to regulations.

In the explanation of the legal representative of the defendant, the Chairman of the People’s Committee of B Province, Mr. Mai Hùng D – Vice Chairman of the People’s Committee of B Province, stated the following:

The project to upgrade and expand DT-747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road was approved by the provincial People’s Committee for the overall compensation, support, and resettlement project in Decision No. 2998/QĐ-UBND dated October 13^th, 2011; the People’s Committee of Tân Uyên District approved the compensation, support, and resettlement plan in Decision No. 9858/QĐ-UBND dated October 3^rd, 2012.

On September 20^th, 2011, the People’s Committee of T District (now T Town) issued Notice No. 201/TB-UBND on eminent domain to implement the DT747B provincial road project from Bình Chuẩn to Hội Nghĩa. On December 28^th, 2011, the Land Development Center of T District (now the Branch of the Land Development Center of T Town) conducted an inventory of land and assets on the land for Mr. Trần Văn H’s household (Inventory Record No. 316/BBKK).

On August 13^th, 2012, the Land Development Center of T District prepared a compensation and support pricing record for Mr. Trần Văn H (Pricing Record No. 61/TTPTQĐ-KT). Based on this, the People’s Committee of T District issued Decision No. 10492/QĐ-UBND dated October 16^th, 2012, on compensation, support, and resettlement for Mr. Trần Văn H and Mrs. Hà Thị P, with a total compensation and support amount of VND 1,518,515,550, including:

+ Plot No. 160: condemned area of 292 m² (perennial crop land) x VND 168,000/m² = VND 49,056,000, route adjustment support: 37 m² x VND 941,850/m² (70% x VND 1,345,500/m²) = VND 34,848,450.

+ Plot No. 23: condemned area of 355 m² (perennial crop land) x VND 168,000/m² = VND 59,640,000, route adjustment support: 66 m² x VND 941,850/m² (70% x VND 1,345,500/m²) = VND 62,162,100.

+ Plot No. 337: condemned area of 859.7 m² (perennial crop land) x VND 168,000/m² = VND 144,429,600.

+ Plot No. 68: condemned area of 521.5 m² (perennial crop land) x VND 168,000/m² = VND 87,612,000, agricultural land support due to the presence of a house on the same plot: 521.5 m² x VND 941,850/m² (70% x VND 1,345,500/m²) = VND 491,174,775.

+ Remaining agricultural land area supported: 875.5 m² x VND 672,750/m² (50% x VND 1,345,500/m²) = VND 588,992,625.

Compensation for trees and crops on the land: VND 600,000.

On August 23^rd, 2012, the People’s Committee of T District issued Decision No. 8493/QĐ-UBND on eminent domain for Mr. Trần Văn H and Mrs. Hà Thị P.

On September 19^th, 2012, the Department of Natural Resources and Environment of T District invited Mr. Trần Văn H and Mrs. Hà Thị P (according to Invitation No. 112/GM-TN&MT) to the People’s Committee of K Commune to announce and hand over the eminent domain decision.

At the meeting, the People’s Committee of K Commune recorded the absence of households (including Mr. Trần Văn H and Mrs. Hà Thị P). On the same day, the People’s Committee of K Commune recorded the public posting of the list of households with condemned land, along with the eminent domain decisions of the households (Meeting Record dated September 26^th, 2012).

On October 16^th, 2012, the People’s Committee of T District issued Decision No. 10492/QĐ-UBND on compensation, support, and resettlement for Mr. Trần Văn H and Mrs. Hà Thị P with a total amount of VND 1,518,515,550.

On October 19^th, 2012, the Department of Natural Resources and Environment of T District continued to invite Mr. Trần Văn H and Mrs. Hà Thị P to the People’s Committee of K Commune to announce and hand over the eminent domain decision (according to Invitation No. 112/GM-TN&MT – second time). However, Mr. Trần Văn H and Mrs. Hà Thị P did not attend the meeting as invited.

On December 15^th, 2014, the Land Development Center of T District invited Mr. Trần Văn H’s household to receive compensation, support, and resettlement money.

On December 18^th, 2014, Mr. Trần Văn H’s household attended the meeting as invited but did not agree to receive the compensation money and support policies.

Disagreeing with the compensation and support pricing results, Mr. Trần Văn H filed a complaint against Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the Chairman of the People’s Committee of T District and requested the direct handover of the eminent domain decision, compensation for 2028.2 m² of land according to the market price at the time the People’s Committee of T Town handed over the eminent domain decision, or exchange of land with the same usage purpose and equivalent position.

– Regarding Mr. Trần Văn H’s request for the direct handover of the eminent domain decision, it is not feasible to consider and resolve, because:

The project to upgrade and expand DT-747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road was approved by the provincial People’s Committee in the overall project Decision No. 2998/QĐ-UBND dated October 13^th, 2011, based on Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government (supplementary regulations on land use planning, land prices, eminent domain, compensation, support, and resettlement);

according to Article 31 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, of the Government, it does not stipulate the direct handover of the eminent domain decision, only the sending of the compensation, support, and resettlement decision to the person whose land is condemned.

However, to ensure transparency and inform the public, the competent authorities of the People’s Committee of T District also twice invited Mr. Trần Văn H and Mrs. Hà Thị P to the People’s Committee of K Commune to announce and hand over the eminent domain decision (first time on September 19^th, 2012; second time on October 19^th, 2012), but both times Mr. Trần Văn H and Mrs. Hà Thị P did not attend,

and the People’s Committee of K Commune recorded the absence and publicly posted the list of households with condemned land, along with the eminent domain decisions at the headquarters of the People’s Committee of K Commune.

– Regarding Mr. Trần Văn H’s request for compensation for 2,028.2 m² of land at market prices at the time the People’s Committee of T Town handed over the eminent domain decision or exchange of land with the same usage purpose and equivalent position, it is not feasible to consider and resolve, because:

The People’s Committee of T District has applied the compensation and support prices for Mr. Trần Văn H and Mrs. Hà Thị P according to the compensation and support plan approved by the People’s Committee of T District in Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, and the plan does not stipulate land exchange, and moreover, the locality does not have land funds for exchange.

– Based on Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated September 28^th, 2009, of the Government, which stipulates: “The State condemns land from users for any purpose, then compensates by allocating new land with the same usage purpose; if there is no land for compensation, then compensation is made by the value of land use rights calculated according to the land price at the time of the eminent domain decision…”;

according to this regulation, the Land Development Center of T District has implemented correctly and applied the compensation prices according to the approved prices in 2012 (at the same time as the eminent domain decision was issued).

Based on the above content, the Chairman of the People’s Committee of B Province issued Decision No. 2731/QĐ-UBND dated October 11^th, 2017, to resolve and reject Mr. Trần Văn H’s complaint against Decision No. 6465/QĐ-UBND dated December 30^th, 2016, of the Chairman of the People’s Committee of T Town, in accordance with the law.

To date, the Chairman of the People’s Committee of B Province still maintains the resolution stance in Decision No. 2731/QĐ-UBND dated October 11^th, 2017. At the same time, it is proposed that the People’s Court of Bình Dương Province dismiss Mr. Trần Văn H’s lawsuit; recognize the content of Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province as in accordance with the law.

In the First-instance Administrative Judgment No. 15/2018/HC-ST dated July 20^th, 2018, of the People’s Court of Bình Dương Province, it was decided:

Rejecting Mr. Trần Văn H’s lawsuit request to annul:

+ Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of T District, Bình Dương Province, on approving the compensation, support, and resettlement plan for the project: upgrading and expanding DT-747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (phase 1: from Khánh Vân bridge to the end of Nam Tân Uyên industrial park within the territory of K Commune (now ward), T District (now town), Bình Dương Province;

+ Decision No. 8493/QĐ-UBND dated August 23, 2012, of the People’s Committee of T Town, Bình Dương Province, on eminent domain;

+ Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T Town, Bình Dương Province, on compensation, support, and resettlement;

+ Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town, Bình Dương Province, on responding to Mr. Trần Văn H’s petition;

+ Decision No. 6465/QĐ-UBND dated December 30^th, 2015, of the Chairman of the People’s Committee of T Town, Bình Dương Province, on resolving Mr. Trần Văn H’s complaint (first instance);

+ Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province, on resolving Mr. Trần Văn H’s complaint (second instance).

Additionally, the first-instance court also ruled on the first-instance administrative court fees and the right to appeal according to the law.

On July 23^rd, 2018, the plaintiff, Mr. Trần Văn H, appealed the entire aforementioned First-instance Administrative Judgment.

In the appeal petition and before today’s appellate court session, the plaintiff, Mr. Trần Văn H, requested the Appellate Panel to amend the first-instance judgment to annul:

+ Decisions No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of T District;

+ Decision No. 8493/QĐ-UBND dated August 23^rd, 2012, of the People’s Committee of T Town;

+ Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T Town;

+ Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town;

+ Decision No. 6465/QĐ-UBND dated December 30^th, 2015, of the Chairman of the People’s Committee of T Town;

+ Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province.

The defendant, the Chairman of the People’s Committee of B Province, the People’s Committee of T Town, and the Chairman of the People’s Committee of T Town, were absent.

The plaintiff’s counsel argued that the eminent domain decisions had procedural errors; the compensation and support approval decisions and the complaint resolution decisions were contrary to regulations because these two decisions were issued in 2012 but were not handed over to Mr. H until 2014, yet the 2012 prices were applied. Therefore, the lawyer requested the appellate panel to accept the plaintiff’s appeal, amend the first-instance judgment, and annul the aforementioned decisions.

The representative of the High People’s Procuracy in Hồ Chí Minh City proposed that the Appellate Panel apply Clause 1, Article 241 of the 2015 Administrative Procedure Law, not accept Mr. Trần Văn H’s appeal, and uphold the first-instance judgment No. 15/2018/HC-ST dated July 20^th, 2018, of the People’s Court of Bình Dương Province.

COURT’S OPINION:

[1] After reviewing the documents and evidence in the case file, as well as considering the arguments presented by the plaintiff’s counsel and the procurator, the Appellate Panel concludes the following:

[2] The plaintiff, Mr. Trần Văn H, initiated a lawsuit seeking the following relief from the Court:

– The annulment of Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, issued by the People’s Committee of T District, Bình Dương Province, which approved the compensation, support, and resettlement plan for the project concerning the upgrading and expansion of the DT-747B road from the Miếu Ông Cù intersection to the intersection with the Thủ Biên – Cổng Xanh road.

This project, which covers phase 1 from the Khánh Vân bridge to the end of the Nam Tân Uyên industrial park within the territory of K Commune (now a ward), T District (now a town), Bình Dương Province, was contested.

– The annulment of Decision No. 8493/QĐ-UBND dated August 23^rd, 2012, from the People’s Committee of T Town, Bình Dương Province, which pertained to the eminent domain.

– The annulment of Decision No. 10492/QĐ-UBND dated October 16^th, 2012, issued by the People’s Committee of T Town, Bình Dương Province, regarding compensation, support, and resettlement.

– The annulment of Dispatch No. 3131/UBND-TD dated May 29^th, 2015, from the People’s Committee of T Town, Bình Dương Province, which addressed Mr. Trần Văn H’s petition.

– The annulment of Decision No. 6465/QĐ-UBND dated December 30^th, 2015, issued by the Chairman of the People’s Committee of T Town, Bình Dương Province, concerning the resolution of Mr. Trần Văn H’s complaint (first instance).

– The annulment of Decision No. 2731/QĐ-UBND dated October 11^th, 2017, from the Chairman of the People’s Committee of B Province, related to the resolution of Mr. Trần Văn H’s complaint (second instance).

[3] Concerning the authority, procedures, and issuance of the contested decisions: According to Clause 2, Article 44 of the 2003 Land Law, Articles 18 and 40 of the Law on Complaints, and Articles 126 and 127 of the Law on the Organization of the People’s Councils and People’s Committees of 2003, the aforementioned decisions were made in accordance with the legal authority, procedures, and regulations.

[4] On the merits of the case:

[5] The project to upgrade and expand the DT-747B road from the Miếu Ông Cù intersection to the intersection with the Thủ Biên – Cổng Xanh road was sanctioned by the People’s Committee of Bình Dương Province in Decision No. 2998/QĐ-UBND dated October 13^th, 2011, which endorsed the overall compensation, support, and resettlement project.

Subsequently, the People’s Committee of T District approved the detailed compensation, support, and resettlement plan under Decision No. 9858/QĐ-UBND dated October 3^rd, 2012. This plan included provisions for compensation and resettlement support. On August 13^th, 2012, the Land Development Center of Tân Uyên District prepared a pricing record for the compensation and support concerning Mr. Trần Văn H.

[6] On August 23^rd, 2012, the People’s Committee of T District issued Decision No. 8493/QĐ-UBND concerning eminent domain for Mr. Trần Văn H and Mrs. Hà Thị P. Subsequently, on October 16^th, 2012, Decision No. 10492/QĐ-UBND was issued, approving the compensation, support, and resettlement budget for Mr. Trần Văn H, which amounted to VND 1,518,515,550.

Mr. Trần Văn H contended that these decisions were founded on unlawful grounds. He claimed that the decisions were accompanied by false documentation, including an inventory record of land and assets dated December 20^th, 2011, which he had not received. Additionally, he argued that the land status map for the area to be cleared was missing, making it difficult to ascertain the extent of land to be cleared and the corresponding compensation.

He further noted that the compensation, support, and resettlement pricing record No. 61/TTPTQĐ-KT dated August 13^th, 2012, was prepared prior to the issuance of the eminent domain decision by the People’s Committee of T District.

[7] On December 18^th, 2014, the Branch of the Land Development Center officially announced and delivered Decision No. 10492/QĐ-UBND dated October 16^th, 2012, to Mr. Trần Văn H. He expressed dissatisfaction with the compensation amount stated in the decision.

Mr. Trần Văn H argued that, according to Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, issued by the Ministry of Natural Resources and Environment, the compensation land price should be based on the land price as of January 1^st each year, determined and announced by the provincial People’s Committee. Therefore, he should have been compensated based on the 2015 land price rather than the 2012 land price applied in Decision No. 10492/QĐ-UBND.

He also cited Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, from the Government, which stipulates that the land price for compensation should reflect the value at the time of the eminent domain decision. Mr. Trần Văn H has yet to receive the eminent domain decision from either the Land Development Center of T Town or the People’s Committee of T Town. Consequently, his request for compensation based on the land price at the time of eminent domain is deemed justified and legally supported.

[8] Furthermore, under Clause 1, Article 11 of Decree No. 69/2009/NĐ-CP and Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT, if the land price at the time of eminent domain deviates significantly from the actual market price under normal conditions, the Provincial People’s Committee should use the market transfer price to determine a fair compensation amount, rather than being restricted by the prescribed land price framework.

[9] The Branch of the Land Development Center announced and delivered Decision No. 10492/QĐ-UBND on December 18^th, 2014. The delay of two years in implementing this compensation decision was attributed to the Branch of the Land Development Center of T Town, which explained that from October 2012 to November 2014, insufficient project funding had prevented compensation payments.

Therefore, Mr. Trần Văn H was not invited to receive the decision or compensation payment due to the administrative delay, not due to any fault on his part.

[10] Mr. Trần Văn H declined to accept the compensation payment, asserting that the Land Development Center of T Town had improperly managed the clearance and compensation process for his 2,899.2m² of land. He claimed that these actions were inconsistent with the established regulations on clearance, compensation, and resettlement support for eminent domain. Consequently, Mr. Trần Văn H filed a formal complaint with the People’s Committee of T Town, challenging the compensation and support valuation for his land.

[11] In response to Mr. Trần Văn H’s complaint, the People’s Committee of T Town issued Dispatch No. 3131/UBND-TD on May 29^th, 2015. The dispatch stated that the Land Development Center had correctly administered the compensation and support for the expropriation of Mr. Trần Văn H’s land, adhering to the relevant procedures and regulations concerning eminent domain and compensation.

[12] Unsatisfied with the resolution provided in Dispatch No. 3131/UBND-TD, Mr. Trần Văn H continued to pursue his complaint. He requested the People’s Committee of T Town to annul the dispatch and demanded that the eminent domain decision be formally delivered to him in accordance with the law.

Additionally, he sought the annulment of Decision No. 10492/QĐ-UBND dated October 16^th, 2012, from the People’s Committee of T District. He further requested that the compensation land price be recalculated based on the market value as of the time the eminent domain decision was delivered or, alternatively, that land of equivalent location, purpose, and value be provided.

[13] On December 30^th, 2015, the Chairman of the People’s Committee of T Town issued Decision No. 6465/QĐ-UBND, which rejected Mr. Trần Văn H’s complaint and upheld the previous decision stated in Dispatch No. 3131/UBND-TD.

[14] Displeased with the resolution from the People’s Committee of T Town, Mr. Trần Văn H filed a new complaint with the Chairman of the People’s Committee of B Province on October 11^th, 2017.

[15] In Decision No. 2731/QĐ-UBND dated October 11^th, 2017, the Chairman of the People’s Committee of B Province denied Mr. Trần Văn H’s complaint, providing the following rationale:

[16] The request for a direct handover of the eminent domain decision could not be accommodated, as Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, does not mandate such a procedure. The decree only requires the delivery of the compensation, support, and resettlement decision to the affected land users.

In this case, the Land Development Center of Tân Uyên District failed to send the compensation, support, and resettlement decision to Mr. Trần Văn H, instead merely inviting him to the People’s Committee of K Commune to be informed and receive the eminent domain decision, which was contrary to the legal requirements.

Additionally, as stipulated in Clause 1, Article 93 of the 2013 Land Law, the responsible agency must disburse compensation and support within 30 days from the effective date of the eminent domain decision.

Clause 2 of the same article provides for late payment interest if there is a delay in compensation. Based on these legal provisions, Mr. Trần Văn H’s request to annul the decisions is legally justified, and his appeal should be considered.

[17] Given these findings, the Appellate Panel deems it necessary to accept Mr. Trần Văn H’s appeal, amend the initial judgment, and annul the decisions related to eminent domain, compensation, support, and resettlement, as well as the decision on the complaint resolution. The case is remanded to the People’s Committee of T Town for a new resolution of Mr. Trần Văn H’s complaint.

In light of the foregoing,

IT IS DECIDED:

Pursuant to:

– Clause 2, Article 241 of the Administrative Procedure Law;

– Articles 30, 32, Clause 2, Article 79, 116, 134, Clause 1, Article 158, Clause 1, Article 164, Point a, Clause 2, Article 193, and Article 194 of the 2015 Administrative Procedure Law;

– Articles 18 and 40 of the Law on Complaints;

– Articles 41 and 42 of the 2003 Land Law;

– Clause 2, Article 14, Article 31 of Decree No. 69/2009/NĐ-CP dated September 28^th, 2009, of the Government; and

– Clause 2, Article 34 of Resolution No. 326/2016/UBTVQH14 dated December 30^th, 2016, of the Standing Committee of the National Assembly on court fees and charges:

The appellate trial concerning Mr. Trần Văn H’s appeal against Decision No. 9858/QĐ-UBND dated October 3^rd, 2012, of the People’s Committee of T District, Bình Dương Province, which approved the compensation, support, and resettlement plan for the project upgrading and expanding the DT-747B road from Miếu Ông Cù intersection to the intersection with Thủ Biên – Cổng Xanh road (phase 1: from Khánh Vân bridge to the end of Nam Tân Uyên industrial park within the territory of K Commune (now ward), T District (now town), Bình Dương Province, is suspended.

Mr. Trần Văn H’s appeal is accepted, and the First-instance Administrative Judgment is amended. The following administrative decisions are annulled:

– Decision No. 8493/QĐ-UBND dated August 23^rd, 2012, of the People’s Committee of T Town, Bình Dương Province, concerning eminent domain.

– Decision No. 10492/QĐ-UBND dated October 16^th, 2012, of the People’s Committee of T Town, Bình Dương Province, regarding compensation, support, and resettlement.

– Dispatch No. 3131/UBND-TD dated May 29^th, 2015, of the People’s Committee of T Town, Bình Dương Province, in response to Mr. Trần Văn H’s petition.

– Decision No. 6465/QĐ-UBND dated December 30^th, 2015, of the Chairman of the People’s Committee of T Town, Bình Dương Province, resolving Mr. Trần Văn H’s complaint (first instance).

– Decision No. 2731/QĐ-UBND dated October 11^th, 2017, of the Chairman of the People’s Committee of B Province, resolving Mr. Trần Văn H’s complaint (second instance).

Regarding court fees:

– First-instance Administrative Court Fees: Mr. Trần Văn H is not required to pay VND 300,000 in first-instance administrative court fees. The court fee advance paid by Mr. Trần Văn H, as per receipt No. 0010852 dated November 29^th, 2017, of the Bình Dương Provincial Civil Judgment Enforcement Department, will be refunded to him.

The defendants, namely the Chairman of the People’s Committee of B Province, the People’s Committee of T Town, Bình Dương Province, and the Chairman of the People’s Committee of T Town, Bình Dương Province, are each required to pay VND 300,000 in first-instance administrative court fees.

– Appellate Administrative Court Fees: Mr. Trần Văn H is not required to pay VND 300,000. The court fee advance paid by him, as per receipt No. 0026781 dated July 25, 2018, of the Bình Dương Provincial Civil Judgment Enforcement Department, will be refunded.

The appellate judgment is effective from the date of pronouncement.

CONTENT OF THE CASE LAW:

“[6] On August 23^rd, 2012, the People’s Committee of T District issued Decision No. 8493/QĐ-UBND concerning eminent domain for Mr. Trần Văn H and Mrs. Hà Thị P. Subsequently, on October 16^th, 2012, Decision No. 10492/QĐ-UBND was issued, approving the compensation, support, and resettlement budget for Mr. Trần Văn H, which amounted to VND 1,518,515,550.

He further noted that the compensation, support, and resettlement pricing record No. 61/TTPTQĐ-KT dated August 13^th, 2012, was prepared prior to the issuance of the eminent domain decision by the People’s Committee of T District.

[7] On December 18^th, 2014, the Branch of the Land Development Center officially announced and delivered Decision No. 10492/QĐ-UBND dated October 16^th, 2012, to Mr. Trần Văn H. He expressed dissatisfaction with the compensation amount stated in the decision.

Mr. Trần Văn H argued that, according to Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT dated October 1^st, 2009, issued by the Ministry of Natural Resources and Environment, the compensation land price should be based on the land price as of January 1^st each year, determined and announced by the provincial People’s Committee. Therefore, he should have been compensated based on the 2015 land price rather than the 2012 land price applied in Decision No. 10492/QĐ-UBND.

He also cited Clause 2, Article 14 of Decree No. 69/2009/NĐ-CP dated August 13^th, 2009, from the Government, which stipulates that the land price for compensation should reflect the value at the time of the eminent domain decision. Mr. Trần Văn H has yet to receive the eminent domain decision from either the Land Development Center of T Town or the People’s Committee of T Town. Consequently, his request for compensation based on the land price at the time of eminent domain is deemed justified and legally supported.”

THE RATIONALE FOR THE CASE LAW DRAFT’S PROPOSAL

(The Appellate Administrative Judgment No. 427/2019/HC-PT dated July 9^th, 2019, of the High People’s Court in Hồ Chí Minh City regarding the case of “Complaint of administrative decision regarding eminent domain, compensation, and support during eminent domain” between the plaintiff, Mr. Trần Văn H, and the defendants, the People’s Committee of Bình Dương Province and the People’s Committee of T Town, Bình Dương Province.)

In administrative cases concerning compensation for land expropriation, it is frequently observed that while competent authorities issue eminent domain decisions and decisions approving compensation, support, and resettlement budgets, there are often delays in announcing and delivering these decisions to the land users.

As a result, by the time these decisions are formally communicated, the land price may have changed, leading to disputes between the land users and the authorities over the compensation amount based on the land price at the time the decisions were issued, which in turn may result in administrative lawsuits.

Clause 1, Article 5 of Circular No. 14/2009/TT-BTNMT, dated October 1^st, 2009, issued by the Ministry of Natural Resources and Environment, stipulates that “The land price for compensation specified in Article 11 of Decree No. 69/2009/NĐ-CP is the land price according to the current use purpose of the condemned land, as determined and announced by the provincial People’s Committee on January 1^st each year.”

In the present case, the People’s Committee of T District issued the eminent domain decisions and the decisions approving compensation, support, and resettlement budgets in August 2012. However, due to insufficient funds, these decisions were not announced and delivered to the land user until December 2014.

This delay resulted in a significant discrepancy between the land price at the time of the eminent domain decision and the land price when the decision was eventually communicated. The land user requested compensation based on the land price at the time of receiving the eminent domain decision.

The Court, acknowledging that the delay in delivering these decisions was the fault of the competent authority, ruled that the compensation should be based on the land price at the time of the eminent domain action. This approach was deemed appropriate to protect the rights of the landowner.

The Department of Legal Affairs and Scientific Management notes that such situations are often subject to various interpretations and that administrative complaints from land users are frequently not accepted. Thus, the Court’s solution in this case—using the land price at the time of eminent domain action as the basis for compensation—ensures fairness and protects the rights of the land users.

It is suggested that this situation could serve as a precedent to guide the consistent application of the law in similar cases, promoting uniformity and clarity in resolving such disputes.

If you need more consulting, please Contact Us at TNHH NT International Law Firm (ntpartnerlawfirm.com)

You can also download the .docx version here.

Rate this post

“The article’s content refers to the regulations that were applicable at the time of its creation and is intended solely for reference purposes. To obtain accurate information, it is advisable to seek the guidance of a consulting lawyer.”

LEGAL CONSULTING SERVICES

090.252.4567

HÃY CLICK ĐỂ LẠI SĐT CHÚNG TÔI SẼ GỌI NGAY CHO BẠN MIỄN PHÍ

NT INTERNATIONAL LAW FIRM

Email: info@ntpartnerlawfirm.com – luatsu.toannguyen@gmail.com
Phone: 090 252 4567
Address: B23 Nam Long Residential Area, Phu Thuan Ward, District 7, Ho Chi Minh City, Vietnam