The Supreme Court of Administration Decision 19 of June 2008

Order ( Dtoh. 21 )

GARUDA

(Official Emblem )

Number of Petition: 227 / 2551 Number of Order: 313 / 2551

IN THE NAME OF THE KING

The Supreme Court of Administration

23 May 2008

Mr. T, 1st Litigant

Mr. A 2nd

Mr. J , 3rd

Mr. R H 4th

Mr. M 5th

Mr. U 6th

B. 7th

S 8th

B 9th

Mr. M 10th

Between

Plaint Receiver

Officers of Pattaya City Hall 1st

View Thalay Jomtien Condominium (1999) Co., Ltd. 2nd

Matter: The Contentious case involving the misconduct of government officers

( The Appeal against the Rejection Order, refusing to accept the Appeal

against the Order of lifting the Injunction before judgment )

- The Official Stamp of The Supreme Court of Administration -

- Dated: 23 May 2008 -

/ The First Litigant…

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The 1st Litigant up to 5th Litigant, and 8th Litigant up to 10th Litigant lodged the Appeal against the Order in the Black Case No.: 54 / 2550, of the First Administrative Court ( The Administrative Court of Rayong )

In this case, The 10 Litigants clarified that the 10 Litigants hold

possessions of the condominium units and live in Jomthien Complex Condotel, 1st Building, Located at Thappraya Road, Moo 12, Nongprue Sub-district, Banglamung District, Chonburi Province. The 10 Litigants were damaged by the procedure of 1st Plaint Receiver by issuing the construction license to construct the building with the License No.: 162 / 2550, issued on: 28 November 2549, permitted View Thalay Jomtien Condominium (1999) Co., Ltd. to permanently construct 1 tall building /or an extraordinary large building, type of building: Koh. Soh. Loh., consisting of 27 floors with the roof terrace, 912 units with 24 shops, for living purpose with the total space: 101, 469 Square Meters, parking space: 11, 708 Square Meters – capacities of cars: 418 cars, swimming pool area: 1,134 Square Meters, Length of pipes: 1, 261 Meters, Located in Nongprue Sub-district, Banglamung District, Chonburi Province. The building’s territory is connected to Jomtien Beach by having a garden and Jomtien beach walkway in the middle. As for Jomthien Complex Condotel, it is located on the west side of, and next to the building that received the construction permit which was issued by 1st Plaint Receiver. 1st Plaint Receiver issued the construction permit by being in contrary to the regulations, methods and conditions stipulated in the Ministry Regulations of Issue 9 ( 2521 ), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, clause 3, which fixes the area within 200 meters, by measuring from the Construction Control boundary, that shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, stated that the lands on the sea sides are prohibited from the aforementioned types of buildings to be constructed. And the stipulation of clause 3 ( 8 ) stated that the constructions which is 14 meters high from the road surface are not up to standard requirement to be allowed for construction. The aforementioned Ministerial Regulations was in force on 23 November 2521 until the present time, without amendments or cancellation, however. If the construction would continue until it is complete, it would have been the cause of changing directions of the wind and blocking the wind which normally blows through to Jomthien Complex Condotel, also it would block the beach front view that have been

able to see from the beginning,……………………………………….

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and Jomtien beach view, which impact physical and mental conditions of the

10 Litigants and also the other residents of Jomthien Complex Condotel. Because the building which was allowed to be constructed by 1st Plaint Receiver is consist of 27 floors / or 81 meters high, which is very close to the height of the condotel that the 10 Litigants live in. After 1st Plaint Receiver issued the license to View Thalay Jomtien Condominium (1999) Co., Ltd. to construct the building, in this present time, the step of landscaping and piling have begun and they caused Jomthien Complex Condotel building to have split and crack lines, also all steps of construction have been done without dust spreading prevention. They caused air pollution and effected respiratory system. The 10 Litigants and residents of Jomthien Complex Condotel had officially tried to object the permission of construction to 1st Plaint Receiver, and also made complaints to involved government sections all along, but the suffering has never been solved, so the 10 Litigants then had to institute the prosecution to the court of law.

The requests for the court to kindly give judgments or orders are as follow;

1. To give an order to minimize the force by suspending the construction license No.: 162 / 2550, Issued on: 28 November 2549 before another order or the final decision is given, and take effect back dated to 28 November 2549. Because 10th Litigants would be extremely damaged until not being able to be solved in the future, if View Thalay Jomtien Condominium (1999) Co., Ltd. still be allowed to continue with its construction.

2. To cancel the construction license No.: 162 / 2550, Issued on: 28 November 2549 which was issued to View Thalay Jomtien Condominium (1999) Co., Ltd. The First Court of Administration gave an order for View Thalay Jomtien Condominium (1999) Co., Ltd. to be an interpleader in this case and determined it to be 2nd Plaint Receiver.

The First Court of Administration made enquiries of both parties on the step of requesting to place the injunction to minimize injured consequences before judgment of the 10 Litigants, and the decision was made as, in this case, the prior point that has been disputed by both parties is the distance from the building, by the Ministerial Regulations of Issue 9 ( B.E. 2521 ), stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which directly involves with the Construction……

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Control Boundary that shown on the Annexed Map of the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521. The 10 Litigants and 1st Plaint Receiver have different understanding in the starting point of measurement of the aforementioned Ministerial Regulations. The 10 Litigants fixed the starting point at the lowest point of low tide, but 1st Plaint Receiver fixed the distance of 100 meters outward from highest level of high tide. Therefore, to be able to judge this case, the court needs to inspect carefully and find out the starting point of measurement which was stated in the Ministerial Regulations of Issue 9 ( B.E. 2521), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, also to find out if the distance of the dispute building from that point is not in violation to the law. The inspection will take some time. If the building is still constructed continuously, and if the court would finally revoke the construction license as requested by the 10 Litigants, then it might bring severe damages to the 10 Litigants. This matter gives enough reason for the court to order the Injunction as requested by the 10 Litigants.” The Court, therefore, ordered 2nd Plaint Receiver to seize the construction which had been permitted under the Construction License No: 162 / 2550, Issued on: 28th November 2006 until the final decision or other order is given, since the order have been received.

The 2nd Plaint Receiver, then lodged the Appeal against the order of placing the Injunction to minimize injurious consequences of The First Court of Administration and The Supreme Court of Administration, then gave an supremacy order to amend the order of The First Court of Administration, to be the order of regulating 2nd Plaint Receiver to temporally seize the steps of construction under the construction license No.: 162 / 2550, Issued on: 28th November 2006, only for the part of the building which is higher than 14 meters from the road surface until the decision is given or another order is made by the court.

The First Court of Administration has preceded the enquiry by ordering the Department of Civil Engineering and City Planning to measure and find the distance between the coast line at the Mean Sea Level (MSL) which is in accordance with the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung,………………..

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Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, to the dispute building, together with the order to present to the court the brief layout or chart, which the layout was made as ordered and presented by the Department of Civil Engineering and City Planning, summarizing that, to fix the coast line at Mean Sea Level, the measurement must be started at the point of 0.00 meters of the Mean Sea Level. When the measurement is made 100 meters outward to the sea, then it will be the Construction Control Boundary that shown on the Annexed Map of the Royal Decree, stimulated to use the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, then made another 100 meters from the aforesaid point into the land, then it will be the distance of 200 meters of the Construction Control Boundary, as stipulated in clause 3 of the Ministerial Regulations of Issue 8 ( B.E. 2519 ), stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which had been amended by adding the Ministerial Regulations of Issue 9 ( B.E. 2521), which stipulated to be in accordance with The Construction Control Acts of B.E. 2479, which stated to prohibit the building with the height over 14 meters from the road surface. The measurement result reported that the building of 2nd Plaint Receiver is not in the boundary of 200 meters.

2nd Plaint Receiver requested the First Court of Administration to lift the injunction before the decision is made.

The First Court of Administration questioned both parties and witnesses and considered that, in this case, the court ordered to temporally place the injunction before the decision is made as requested by the 10 Litigants with the prior reason that, to proceed enquiries of this case, the court needs to inspect carefully and find out the starting point of measurement which was stated in the Ministerial Regulations of Issue 9 ( B.E. 2521), promulgated to be in accordance with the Construction Control Acts of B.E. 2479, also to find out if the distance of the dispute building from that point is not in violation to the law. But the measurement following the order of court, reported by of the Department of Civil Engineering and City Planning, together with the witness’s testimony, stated that, the dispute building is located more than 100 meters from the Mean Sea Level. With the consideration of court, considering the measurement of 100 meters, from the Mean Sea Level, outward into the sea which was reported and testified by the witness, to be the Construction Control Boundary, shown on the Annexed map of the Royal Decree, which stipulated to enforce the Construction Control Acts of ………

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B..E. 2479, to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, the contrary building will be over 200 meters of the Construction Control Boundary, and also as stipulated in the aforementioned Ministerial Regulations. Therefore, the matters of facts which have been used in consideration of court have changed, and the reasons to continue placing the Injunction becomes insufficiency. The court then, ordered to lift the Injunction which was the order of stopping the 2nd Plaint Receiver from building the construction higher than 14 meters from the road surface temporally, until the final decision or the other order is given, following Clause 77 of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543, together with Article 262, Phrase 1 of the Civil Codes, which have brought in to be enforced compromisingly.

7th Litigant withdrew his name out of being one of all litigants, by the document dated on 17 January 2551 and the First Court of Administration permitted the withdrawal of 7th Litigant.

1st – 6th and 8th – 10th Litigants lodged the Appeal dated on 15 February 2551 against the order of lifting the injunction given by the First Court of Administration. The request was asking for the supremacy order from the Supreme Court of Administration to amend the order given by the First Court of Administration, and to order the injunction to be able to continue taking effect before judgment as requested by the 9 Litigants.

The First Court of Administration considered that, as stated in Clause 76, 2nd and 3rd phrases of The Regulations of the Grand Administration Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, it shows that, there are only 2 circumstances involving the consideration about the injunction before judgment during trials by the Administrative Court. One is the circumstance of which the court gives the order to reject or lift or cancel the request of the litigant, this type of order is considered to be the supremacy order, and the other circumstance is in the case of which the court gives the order to place the injunction, the interested person has the right to lodge the Appeal against this order, temporally, the interested person has the right to lodge the Appeal to the Supreme Court of Administration. In this case, the court originally gave an order to place the injunction to minimize injurious consequences…..

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Before judgment as requested by the 9 Litigants. The 2nd Plaint Receiver, therefore, used the right to lodge the Appeal to the Supreme Court of Administration, and the Supreme Court already gave the order to replace the former order which was given by the First Court of Administration. When later on, the facts and reasons to continue placing the injunction became insufficiency. The court then, cancelled the aforementioned order to minimize injurious consequences. This circumstance, however, gave the same effect as the rejection / or cancellation of the request which was requested by the 9 Litigants, therefore, this order is the supremacy order as stated in Clause 76, 2nd Phrase of the aforesaid Regulations, and the 9 Litigants can no longer lodge the Appeal. This Appeal of the 9 Litigants is forbidden to be proceeded by law, the First Court of Administration then gave the order to reject the Appeal of the 9 Litigants.
6th Litigant withdrew his name out of being one of all litigants, by the

document dated on 20 February 2551 and the First Court of Administration permitted the withdrawal of 6th Litigant.
1st – 5th and 8th – 10th Litigants lodged an appeal against the rejection order which refused to accept the appeal against the order of lifting the injunction before final decision is made, given that order by the First Court of Administration, the matters stated that, the order given out to lift the Injunction is another step of trial and ordering after the injunction was ordered by the First Court of Administration and the Supreme Court of Administration, to be placed before the final decision is made / and it is NOT the order that would give the same effect to reject / or cancel the request which was filed by the 8 Litigants, because that order is the final order and it is prohibited for appealing, as stated in Clause 76, 2nd Phrase of the mentioned Regulations. Because of no stipulation in the aforesaid law / or regulations to state that, the order of lifting the injunction before judgment, given by the First Court of Administration is the FINAL ORDER The aforesaid order……….

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is considered to be another type of order, which is allowed to appeal during trial, as stated in Clause 100, 2nd phrase, which stated that the interested persons have the right to lodge an appeal against the aforesaid order, to the Supreme Court of Administration within 30 days from the day of receiving that order, given by the First Court of Administration, as stated in Clause 49 /1 and Clause 100, 1st Phrase of the Regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, which is in agreement with the point of law in the Civil Codes, which stipulated the right to lodge an appeal against the amending order / or canceling order, which is temporally, and stated in Article 262, is the order that is allowed to appeal, and according to Article 228 (2 ) of the Civil Codes, the appeal must be lodged within 30 days. Also the points in the appeal of the 8 Litigants are suitable to be taken for consideration for the judgment to be given by using the standard in consideration of the Supreme Court of Administration. Therefore, the request which was made to the Supreme Court of Administration is for the Supreme Court of Administration to give the supremacy order to change the order of the First Court of Administration, by ordering to accept the appeal of the 8 Litigants for consideration.
The Supreme Court of Administration considered and acknowledged that, the stipulation in Clause 75 of the Regulations of the Grand Administrative Meeting of the Supreme Court stated that, apart from the circumstance which mentioned in Clause 69, at all times, before the final court decision is given, the litigant may institute the petition to request for any procedure to minimize the injurious consequences before the final court decision is given, / or the other party may file the request for the court to order the procedure to protect the benefit during trial / or to enforce the act follow the court’s decision. In Clause 76, 2nd Phrase, stipulated that the cancellation or rejection order against the petition of request of the litigant is the supremacy order. And in 3rd Phrase stipulated that, the interested persons have the right to lodge an appeal against the order of placing the procedure to minimize the injurious consequences before the judgment is given / or the procedure to protect the benefit of the litigant during trial, / or to enforce by the court’s decision, to the Supreme Court of Administration within 30 days from the day of receiving or being informed about that order. In Clause 100, 1st Phrase, stated that, the court’s decision / or order given by the First Court of Administration, which has not been stipulated to be the supremacy or final order, can be appealed to the Supreme Court of Administration, and in 2nd Phrase, stated that, the order during trial which has not been stipulated by this regulations to be able to appeal during trial, must be appealed together with the appeal against the judicial decision / or order that finalize the case out of the consideration of court. And in Clause 49 / 1, 1st Phrase, stated that, the order of the First Court of Administration which refusing to accept the petition for consideration, ………….

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the order of disposing the case out of record without the definite final decision, / the order of punishment the charge of infringement of the jurisdiction of courts following the Article 64 / or another orders which are not prohibited to appeal during trial by Clause 100, 2nd Phrase, stated that, the interested persons have the right to lodge an appeal against the aforementioned orders to the Supreme Court of Administration within 30 days since receiving the order given by the First Court of Administration. And in 2nd Phrase, stated that, the petition stated in 1st Phrase shall be lodged to the First Court of Administration which given out that order, and the court officer shall send the petition, together with the order of the First Court of Administration, also involved documents / or copies of documents, immediately, to the Supreme Court of Administration.

In this case, originally, The First Court of Administration ordered to

place the Injunction to minimize injurious consequences by ordering 2nd Plaint Receiver to seize the construction under the construction license NO.: 162 / 2550, Issued on: 28th November 2006, until receiving another order or the judgment. 2nd Plaint Receiver, then lodged an appeal against the order of placing the injunction, given by the First Court of Administration, / and the Supreme Court of Administration had given the supremacy order to change the former order of the First Court of Administration by ordering 2nd Plaint Receiver to seize the construction under the construction license NO.: 162 / 2550, Issued on: 28th November 2006, only for the part of the building which is higher than 14 meters from the road surface until the decision is given or another order is made by the court. When the First Court of Administration has preceded the step of enquiry by ordering the Department of Civil Engineering and City Planning to measure and find the distance between the coast line at the Mean Sea Level (MSL) , together with presenting the brief layout or chart to the court, the Department of Civil Engineering and City Plannin reported to the court that,

the contrary building is located outside the Construction Control Boundary, as shown on the Annexed Map of the Royal Decree, stimulated to enforce the Construction Control Acts of B.E. 2479 to take control over the regions of Banglamung, Nongplalai, Nakluea, and Nongprue Sub-districts of Banglamung District, Chonburi Province, B.E. 2521, along the seaside, more than 200 meters, as stipulated in Clause 3 of the Ministerial Regulations of Issue 8 ( .E. 2519 ), which stipulated to be in accordance with the Construction Control Acts of B.E. 2479, which had been amended by adding the Ministerial Regulations of Issue 9 ( B.E. 2521), which stipulated to be in accordance with The Construction Control Acts of B.E. 2479. 2nd Plaint Receiver then, lodged a petition to request for the cancellation of the injunction before final court’s decision is made, and the First Court of Administration then making enquiries, by questioning both parties ………………

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and the witnesses, and then considered that, the matters of facts which have been used in consideration of court have changed, and the reasons to continue placing the Injunction becomes insufficiency for the order to remain the same. The court then, ordered to lift the Injunction which had been the order of stopping the 2nd Plaint Receiver from building the construction higher than 14 meters from the road surface temporally, until the final decision or the other order is given, following Clause 77 of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543, together with Article 262, Phrase 1 of the Civil Codes, which have brought in to be enforced compromisingly.

Even though the order of lifting the injunction before final decision is made, which given by the First Court of Administration, shall take the same effect to the rejection or cancellation of the request which was filed by the litigants, which was the request to place the injunction, however, it is NOT THE ORDER OF LIFTING OR CANCELLING THE REQUEST of the litigants which requested the court to temporally place the injunction before the final court’s decision is made.

The Supreme Court of Administration is however, not in agreement with the consideration of the First Court of Administration on the matter that the First Court of Administration considered the effect of the order of lifting the injunction to be as same effect taken by the rejection or cancellation of the request which was filed by the litigants, which was the request to place the injunction before the final court’s decision is made. The aforementioned order is stipulated to be the supremacy order as stated in Clause 76, 2nd Phrase of the regulations of the Grand Administration Meeting of the Supreme Court of Administration, governing the Administrative Procedures of B.E. 2543. And thereby, the order of lifting the injunction given by the First Court of Administration is the type of order which was not stipulated to be the supremacy order, following the Administrative Control Acts and the Administrative Procedures of B.E. 2542 / and the Regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, the litigants have the right to appeal to the Supreme Court of Administration by following Clause 100, 1st Phrase of the mentioned regulations.
The only issue that needed to be taken to the consideration will be about the order of lifting the injunction / or canceling the protection procedure to minimize the injurious consequences before final court’s decision is made, ………

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Given by the First Court of Administration is either the order during trial which is prohibited to appeal during trial, as stated in Clause 100, 2nd phrase of the same regulations / or NOT.

The result of consideration agreed that, while the contentious case between the 8 Litigants and 2 Plaint Receivers is on trial of the First Court of Administration, the order of lifting the injunction or procedure to minimize injurious consequences which was the order for 2nd Plaint Receiver to seize the construction under the construction license No.: 162 / 2550, Issued on: 28 November 2549, only for the part of the building that is above 14 meters from the road surface, until receiving the Judicial decision or another order, which given by the First Court of Administration, is NOT the judicial decision or order to finalize the case out of court’s consideration, so it is considered that, the aforementioned order is an order during trial. Even though there is no obvious stipulation which is clearly clarified the right to appeal in the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B.E. 2543, unlike the obvious stipulation of which stipulated the right of the interested persons, in able to lodge an appeal against the order of lifting the injunction during trial of the First Court of Administration, however, but it is shown by the reason of the matter that, The Litigants should receive the same right as the interested persons receive to be able to lodge an appeal against the order of lifting the injunction before judgment, during the trial. Allowing the litigants to lodge an appeal against the aforementioned order, including against the judicial decision / or the court order which definitely finalize the case out of court’s consideration and trial, as stated in Clause 100, 2nd phrase of the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B. E. 2543, will not benefit the litigants. Thereby, if the Supreme Court of Administration considers that the matters in the appeal of the litigants is strong, the litigants will loose the temporally protection during trial of the First Court of Administration IN TIME, the matter is considered that the order of lifting the injunction during trial, given by the First Court of Administration is NOT THE PROHIBITED ORDER for appealing during trial, as stated in Clause 100, 2nd phrase of the regulations of the Grand Administrative Meeting of the Supreme Court, governing the Administrative Procedures of B. E. 2543. Therefore, the 8 Litigants, then have the right to lodge an appeal against the aforementioned order to the Supreme Court of Administration within 30 days from the day of receiving the order given by the First Court of Administration, as stated in Clause 49 /1, 1st phrase of the mentioned regulations. The First Court of Administration should…………

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should assign the court officer to send the Appeal against the order dated on 15 February 2551 of the 8 Litigants, including the order of lifting the injunction given by the First Court of Administration and all involving documents / or copies of documents to the Supreme Court of Administration within the short period of time, following Clause 49 / 1 of the same regulations। The decision of giving out the rejection order against the appeal of the 8 Litigants, is not in the agreement with the consideration of the Supreme Court of Administration.

The court, hereby shall give the order to accept the Appeal against the order, dated: 15 February2551 of the 8 Litigants to take under court’s consideration.

Mr. Worapoj Wisarupitch - Signed - (Responsible Judge)

Judge of the Supreme Court of Administration

Mr. Ampol Sighagowin - Signed -

Chief of Judges of the Supreme Court of Administration

Mr. Wichai Cheunchompunoot - Signed -

Judge of the Supreme Court of Administration

Mr. Paiboon Sianggong - Signed -

Judge of the Supreme Court of Administration

Mr. Udomsak Nitimontri

Judge of the Supreme Court of Administration

/ attachment – the record of the Supreme Court of Administration

In the case of the necessity of the absent of the signature of the judge.

- The Official Stamp of the Supreme Court of Administration -

- The Official Stamp of The Supreme Court of Administration -

- Dated: 23 May 2008 - 12

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Compare the Supreme Administrative Court decide given in Rayon on 1 of August 2007 with the most recent.

“The point to be considered further is that whether it is reasonable and justified to apply provisional measure or temporary safeguard before judgment as requested by the ten plaintiffs. The judge considered that while the plaintiffs are filing the case, the building is being constructed by the Defendant No. 2. The construction is preparing the land site, foundation piles are being knocked down into the base soil. The knocking was so hard that the condominium of the ten plaintiffs was cracked. Construction was processed without dust cover or protection resulting air pollution. While the Administrative Court of First Instance examining the parties to apply the temporary protection or provisional measure before judgment, the lawyer authorized by the ten plaintiffs testified that the construction has already passed the foundation piles knocking. Pillars are being formed up. This verifies that the Defendant No.2 intends to continue the construction. The plaintiffs, who live in Jomthien Complex Condotel Condominium, as well as other neighboring residents in the construction areas, can possibly be suffered and damaged from the construction as being stated in the motive, i.e. while the building going taller or higher, the wind direction from Jomthien sea can change its direction and not blowing towards Jomthien Complex Condotel like before. The sea scenery shall be blocked off by the new building disrupting the good health of the existing residents. As the building being constructed by the Defendant No. 2 is as high as 27 storeys, or about 81 meters which is close the height of the condominium being stayed by the plaintiffs. Therefore, if the construction of disputed building continues, it is difficult to remedy the problem at a later date because if the Court revokes the construction permit at the end of the trial, the building shall be demolished accordingly to the Court’s order. The demolishing should require long period to accomplish. As long the building was not completely demolished, the ten plaintiffs shall be suffered by the building. Besides, the demolishing cannot serve as the remedial action to the disturbance or damage the plaintiffs have already suffered before the demolishing completed.

The circumstance is justified to the Court to order provisional measure, or give temporary protection before judgment that the Defendant No. 2 temporary ceasing the construction of the building according to the Construction Permit No. 162/2007 dated 28 November 2006 until the Court gives judgment or orders otherwise.

The last question to be considered is that whether the provisional measure before judgment shall render negative effect to the Defendant No. 1 on their routine administration. The consideration was that when the Court has the order to give temporary protection and issuance of the provisional measure to cease the construction of the building is only involved with the construction work at the site. There is nothing to enforce or change or to affect whatsoever to the Work Permit that the Defendant No. 1 issued. Therefore, the Court’s order is not interfering with the administration of the Defendant No. 1

Nevertheless, where No. 3 (8) under the Ministerial Regulation No. 8 (B.E. 2519) issued by the virtue of the Building Control Act B.E. 2479 amended by the Ministerial Regulation No. 9 (B.E. 2521) issued by the virtue of the Building Control Act B.E. 2479 prescribed that the 200 meter line measured from the construction control line shown in the map annexed to the Royal Decree promulgating the Building Control Act B.E. 2479 governing Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klue and Tambol Nhong Prue of Ampur Bang Lamung Chonburi Province B.E. 2521 on the seaside shall be restricted from constructing of any building exceeding 14 meter high from road surface. Therefore, if the Construction Permit No. 162/2007 dated 28 November 2006 granted by the Defendant No. 1 to the Defendant No. 2 should appear to be unlawful against the Ministerial Regulation thereto as being claimed by the ten plaintiffs, the Court of First Instance should have sentenced this point of being unlawful, i.e. the judgment shall be focused on the permission of construction the building exceeding height limit by the Defendant No. 2. Whilst the Administrative Court of First Instance ordered the provisional measure to cease construction before judgment, the building’s base rocks were built, the construction did not reach the height limit of 14 meter above the road surface. Where the Administrative Court of First Instance issued the order of provisional measure to effect temporary protection by ceasing the entire construction is, therefore, in excess of what reasonable under the circumstances.

The Supreme Court, therefore, gives an order to amend the order of the Administrative Court of First Instance. That the Defendant No. 2 shall cease the construction performed, under the Work Permit No. 162/2007 dated 28 November 2007, on the part exceeding 14 meter height. On a temporary basis until the Court has ordered otherwise.

Mr. Vorapoj Visarutpich

Judge of Supreme Administrative Court

Mr. Amnaj Singgovin

Chief Judge of the Supreme Administrative Court

Mr. Vichai Chuenchompoonuj

Judge of Supreme Administrative Court

Mr. Paiboon Siengkong

Judge of Supreme Administrative Court

Mr. Udomsak Nimitmontri

Judge of Supreme Administrative Court”

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Below is the English translation of the Department of Public Works and Town & City Planning in Bangkok report to Rayong Administrative Court. It starts with a letter mark “most urgent” dated 18 December 2007.

“MOST URGENT

GARUDA EMBLEM

Ref. Mor Tor 0710/9634
Dept. of Public Works
And Town & City Planning
Rama 6 Road, Phayathai
Bangkok 10400
18 December 2007

Subject Execution of Court Order
To The Director General of Rayong Administrative Court
Reference Order of Rayong Administrative Court dated 19 September 2007

Enclosure 1. Execution Report to Court Order with support document
.Photos taken to support the report

With reference to the Order of Rayong Administrative Court issued to the Department of Public Works and Town & City Planning, as the authority who responsible for the issuance of the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521 and the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 executing the measurement of distance of Mean Sea Level under the provision of the above Decree to the building under conflict. The measured distance shall be reported to the Court supporting by the map, The Department of Public Works would advise that our officers have been assigned to execute the Court Order since 15 through 17 of November 2007. The measurement report with related photographs recorded during the execution are attached (Attachment 1 and 2 referred).

Yours respectfully

(Mr. Suraphol Phongthaipat)
Senior Engineer
In charge of the Director of the Dept. of Public Works

Building Control and Inspection Division "

The Report concerning the court order survey is below:

"Execution to Court Order Report

1. Original Story

The Rayong Administrative Court has its Order Black Case No. 54/2550 between Mr. Tenbuelt Aloysius Joannes Maria, No. 1 and 9 Associates totaling 10 Litigants and the Pattaya City Local Official, No. 1 Prosecuted Person and the No. 2 Prosecuted Person, Order dated 19 September 2007 referred.

The Department of Public Works being the authorized agency as the authority who responsible for the issuance of the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521 and the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (B.E. 2521) issued under the Building Construction Control Act B.E. 2479 executing the measurement of distance of Mean Sea Level under the provision of the above Decree to the building under conflict. The measured distance shall be reported to the Court supporting by the map, after measurement is complete, the Department shall submit report with supporting map to the Court.

The Department of Public Works has assigned the following 8 staff members from the Building Inspection and Control Division accompanied by the Engineers of the Structural and System Engineering Division to accomplish the measurement

2. Staff involved

1. Mr. Viriya Visutrattanakul Legal Officer 7 Building Control and Inspection
2. Mr. Wattanachat Kajornsiri Civil Engineer 6 System Engineering Div.
3. Mr. Suthichai Boonlam Civil Engineer 4 System Engineering Div.
4. Mr. Vichet Chaithong-at Civil Engineer 2 System Engineering Div.
5. Mr. Soonthorn Vejpitak Civil Officer System Engineering Div.
6. Mr. Puchong Chansomboon Worker System Engineering Div.
7. Mr. Thongchai Yangsoong Worker System Engineering Div.
8. Mr. Thanivat Jangploy Driver Building Control and Inspection

Observers from the Litigants

1. Mr. Richard ............. Litigant
2. Mr. Adam ........ Litigant
3. Mr. Amnaj Thiengtham Authorized Lawyer
4. Mr. Rigis ........ Observer
5 मर्स Observer
6 Mrs Benyaporn Observer
7. Mr. Tanes Tumthong Lawyer‘s Representative
8. Mr. Chalermchat Vanitsirisit Lawyer’s Representative
9. Asst. Prof. Dr. Sanpetch Surnitipaisan Engineering Division, Chulalongkorn University

Observers from the Prosecuted Person 1 Pattaya City

1. Mr. Vidhaya Sirivorachai Chief Building Control Division
2. Mr. Samran Panpreecha Chief Building Control Section
3. Mr. Chavalit Jariyayanyong Traffic Researcher 7
4. Miss Benjawan Chinpat Legal Officer 4
5. Mr. Teeradej Srimuang Inspector Region 3

Observers from the Prosecuted Person 2 View Talay Jomthien (1999) Company

1. Mr. Somjet Hasan Project Engineer
2. Mr. Preecha Dechamuanvaivit Authorized Lawyer
3. Mr. Jeerasak Sangvanlek Observer
4. Mrs. Vilai Supcharoen Observer

Observer from the Meteorological Department
Mr. Jaruwat Srichana Meteorological Officer 6

3. Period of execution
The process had been operated from Thursday 15 November 2007 to Saturday 17 November 2007 for 3 days.

4. Methods
The measurement started from the brass peg No. Or Dor MSL C.B. 0029 which is 48.989 meter above mean sea level at the area of Chonburi Meteorological Department (Pattaya) on Phra Tamnak Hill targeted by survey telescope through the road towards the entrance of Royal Cliff Hotel to reach the Phra Tamnak 5 Road then leftward into Phra Tamnak 5 Road until the telescopic sight reach Jomthien Beach on the footpath level then further down to the construction area in dispute (before Dong Tan Police box). The distance was about 3.5 kilometer. Next step was by telescopic survey from the site of dispute backward to the brass peg MSL C.B. 0029 at the distance of again 3.5 kilometer to recheck the precision of measurement. In each measured point, temporary B.M. or B.M.T had been marked all the way as requested by the observer of the litigants. Two sets of temporary M.T. were marked again in front of the Jomthien Beach exactly in front of the construction site after precise leveling equivalent process was carried out. One set was marked at the MSL of 0.00 meter and the other was marked at MSL of 1.4477 meter. Measurement of distance from the two marked point to the conflict building was recorded in the presence of both parties. The parties were satisfied with the process therefore accepted the execution method carried out by the Department of Public Works (Attachment 1 refers).


5. Execution results
The reading from telescopic survey process to identify MSL appeared in the horizontal line herewith attached (Attachment 2 refers) and from the examination on MSL, referred to in the Book printed in the memorial of the Meteorological Department on its 80th Anniversary Chapter 5 page 88, published on 10th January 2007 claimed that the MSL value equals to 0.00 meter. The MSL of 1.4477 meter is the reference MSL at Ko Lak area of Prachuab Khirikhan Province. This is the reference MSL used by the Ordnance Survey Department throughout the country by means of leveling transfer (Attachment 3 refers). Therefore, the measurement of MSL at the shoreline must be measured from MSL 0.00 seaward to the distance of 100 meter is the area for construction restriction appeared in the map annexed to the Royal Decree Promulgating the Building Construction Control Act B.E. 2479 applying to some areas of Tambol Bang Lamung, Tambol Nhong Plalai, Tambol Na Klua, and Tambol Nhong Prue of Amphur Bang Lamung of Chonburi Province B.E. 2521.

Where the measure from this point toward the land in front of the building construction for another 100 meter, the area shall be identified as the 200 meter restriction area for construction referred under Clause 3 of the Ministerial Regulation No. 8 (B.E. 2519) amended by the Ministerial Regulation No. 9 (2521) issued under the Building Construction Control Act B.E. 2479 governing restriction of construction of the building exceeding 14 meter from ground level. Measurement result is appeared in the attached map (Attachment 4 refers).

Report prepared by
Mr. Wattanachart Kajornsiri

Certified Correct Copy
Mrs. Suthida Chiengpongse
Administrative Case Officer “

हाउ can anyone read Issue 9 and make this report? Look at what Issue 9 said “No 3. To specify the area within the 200 meters measurement from the construction control line see the map.......................at the seashore in which the following constructions shall not be built:” “Building of 14 meters higher than road level”

There is no where in Issue 9 it said to measure seaward 100 meters from MSL! Then to measure 100 meters from MSL onto the land। After which you add the two measurements together for a 200 meters measurement from the seashore at MSL.

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Witness Testimony Record

(Inquiring Stage)

Black Case No. 54/2551

GARUDA EMBLEM

The Administrative Court of Rayong

15 January 2008

Mr. Tenbuelt …………….. No. 1 and 9 Associates Litigants

Between

Pattaya City Local Official First Prosecuted Person

View Talay Jomthien Condominium Second Prosecuted Person

I have taken an oath to testify the following statement:

1. My name is Mr. Veera Visuthirattanakul
2. I was born on 28 June B.E. 2500 age 50
3. My profession is Legal Officer 7
4. I reside at The Office of Building Control and Inspection within the Department of Public Works and Town & City Planning, Rama 6 Road, Khwang Samsennai, Khet Phayathai, Bangkok
5. My relationship to the parties : Witness

My testimony shall be as follows:

The restricted zone of the building control area under the Royal Decree governing Building Construction Control B.E. 2521 shall be determined by the distance of 100 meter from Mean Sea Level outward to the sea.

In conducting the measuring, the witness did not measure from MSL towards the conflict building, but measured from the MSL to the 100 meter from the MSL

Mr. Veera Visuthirattanakul, Legal Officer 7 and Mr. Wattanchart Kajornsiri, the Civil Engineer 6 of the Department of Public Works are the witnesses of the case.

The Litigants apply the motion to clarify the point of law and fact dated 15 January 2008. The motion was accepted by the Court and copy of this motion was given to the two prosecuted persons today.

The testimony of the parties and witnesses have been recorded by the Court.

All parties and witnesses requested copies of the witness testimony records together with proceeding report of today. The Court approved such requests.

All witnesses received witness’ fee of Bht 300 each and transportation cost of Bht 1,000 each. Each witness received total 1,300 baht.

The hearing closed at 10.45 hours.

Signed ……………………………………………. Judge of the file

(Mr. Kritdanai Tromtat)

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Motion

The Rayong Administrative Court

2 January 2008

Mr. Tenbuelt Aloysius Joannes Maria No. 1 and 9 Associates Litigants

Between

Pattaya City Local Official First Prosecuted Person

View Talay Jomthien Condominium Second Prosecuted Person

I, View Talay Jomthien Condominium (1999) Company Limited by Mr. Preecha Techamualvaivit, the authorized lawyer …………………………………………. of the Prosecuted Person 2 would file the motion as follows:

The inquiring process to all parties and witnesses – Mr. Veera Visuthirattanakul and Mr. Wattachart Kajornsiri have been completed since 15 Januray 2007. The Court also sent the copy of the MOST URGENT letter reference Mor Tor 0710/9634 issued by the Department of Public Works and City & Town Planning to the parties.

1. Report of execution to Court Order that accomplished by the officials of the Department of Public Works and Town & City Planning from the central office, after which the results are as follows:

(1) Measurement from shoreline at 0.00 MSL at the north side of the land of conflict towards the land mark foundation is 50.15 meter and if further measure into the land plot of another 49.85 meter the total distance will be 100 meter measured from the shoreline at MSL 0.00 at this side.

(2) Measurement from the shoreline at 0.00 MSL at the south side of the land of conflict towards the land mark foundation is 49.60 meter and if further measured into the land plot of another 50.40 meter the total distance will be 100 meter measured from the shoreline at MSL 0.00 at this side.

(3) The high-rise building line that will be constructed on the land of conflict towards the seaside by meter meters behind 100 meter line.

(Please see details in the enclosed map of measuring according to the Court Order)

As the measurement of 100 meter referred in No. 2 above, it is verified that the building in conflict is not built in the restricted area of 200 meter as prohibited by the Construction Permit No. 162/2550

BIG WIN! At the Administrative Supreme Court

Today we won our “Petition - The Appeal against the Rejection order of the last appeal” dated 27 March 2008. What happened was that the Rayong Court had blocked our appeal to the Administrative Supreme Court. Then we had to Petition the Admin Supreme Court to hear our “Appeal the order of lifting the injunction” dated 15 of February 2008. The Admin Supreme Court decided they wanted to hear our appeal because it relates to the Public Benefit and the rule of law. The supreme court doesn’t have to hear every case presented to them so their decision today to at least hear our case is a big win for us and a very positive step in our fight to have the building permit for the current View Talay 7 project declared illegal.

We believe this decision means the Admin Supreme Court disagreed with something in the 16 January 2008 Rayong court order that lifted the View Talay7 injunction and permitted construction to start on the contested 27 storey condominium project. The Admin Supreme Court has now ordered View Talay and Pattaya City Hall to give their answer to our appeal within 30 days.

If they chose View Talay 7 can continue building during the appeal procedure. Which we thing would be very risky because of the interest of the Admin Supreme Court in our appeal. Also the history of Thai courts in removing illegal portions of builds it risky to go on working.

Again, today is a very BIG WIN! Now we hope the Admin Supreme Court will rule on Issue 9 measurements, examine the expert witness report that we disagree with and hopefully reinstate the injunction until a final decision is made.

We believe that Issue 9 is a well written law that effects the beach environment by restricting various types of construction including preventing any building over 14 meters high within 200 meter from the seashore. While we believe we have a very strong legal case to stop the VT7 current construction and have the building permit declared illegal, we also understand that this is not simple legal case and it will take time before the final decision is made. We hope this will happen before the end of this year so we can all start the new year with great resolutions to make Jomtien a better place to live and invest.

This recent Administrative Supreme Court order was sent to a university in Bangkok for English translation. Then finished translation will also be posted on our website.

In summary, We have been waiting for over 18 months to get to this point in this very important legal case for all of Thailand and we thank everyone for your monetary and emotional support so far।
Richard

PS: From a blog; I like to share a posting which I think it explains all: “The Admin Supreme Court order spook once by saying “Therefore, if the Construction Permit No. 162/2007 dated 28 November 2006 granted by the Defendant No. 1 to the Defendant No. 2 should appear to be unlawful against the Ministerial Regulation thereto as being claimed by the ten plaintiffs,.”
I guess the expert witness, Rayong court, vt7 and city hall did not understand their previously Supreme Court Order so that why they accepted the appeal. Next time they hopefully make it loud and clear to all.”