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Chen Moumou and the Changshun County People’s Government confirmed the first-instance judgment of the illegal case

Intermediate People's Court of Qiannan Buyi and Miao Autonomous Prefecture, Guizhou Province

administrative judgment

(2016) Guizhou 27th Xingchu No. 9

Plaintiff Chen Moumou, male, born on January 19, 1947, Buyi ethnic group, from Changshun County, Guizhou Province, lives in Baiyunshan Town, Changshun County;

The entrusted agents, Wang Qingfeng and Lu Jianan, are both lawyers at Beijing Yingting Law Firm.

Defendant Changshun County People's Government, domicile: Changzhai Town, Changshun County;

The legal representative, Li Youjun, is the county magistrate;

The entrusted agent, Chen Yuanyuan, is a staff member of the Changshun County People’s Government;

The authorized agent is Chen Jian, a lawyer at Guizhou Kaile Law Firm.

The plaintiff Chen Moumou was dissatisfied with the "Notice of Relocation of Qianqiao Reservoir" issued by the defendant Changshun County Government (hereinafter referred to as the county government), and filed a lawsuit with this court on January 13, 2016. After accepting the case, this court served the defendant with a copy of the complaint, a notice of response, and a notice of evidence in accordance with the law. This court formed a collegial panel in accordance with the law and held a public hearing on May 11, 2016. The plaintiff Chen Moumou entrusted his agent Wang Qingfeng, and the defendant county government appointed agents Chen Yuanyuan and Chen Jian to attend the court proceedings. This case has now been concluded.

On July 9, 2015, the defendant Changshun County People's Government entrusted the Changshun County Baiyunshan Town People's Government to issue a "Qianqiao Reservoir Relocation Notice". The notice stated that due to the construction of the Changshun County Qianqiao Reservoir project, the plaintiff was required to move the tomb located in the stockyard before July 15, 2015.

The plaintiff Chen Moumou claimed that on July 9, 2015, he received the "Qianqiao Reservoir Relocation Notice" issued by the People's Government of Baiyunshan Town, Changshun County. The main content was that due to the construction of the Qianqiao Reservoir project in Changshun County, the plaintiff was required to move the tomb located in the stockyard before July 15, 2015. If the relocation is not completed within the required time, the grave will be forcibly relocated. The plaintiff believed that the notice was illegal and filed an administrative lawsuit with the Longli County People's Court. On September 11, 2015, it received the Longli County People's Court (2015) Long Xingchuzi No. 31 Administrative Ruling, which determined that the "Qianqiao Reservoir Relocation Notice" was issued by the Baiyunshan Town Government based on the entrustment of the Changshun County Government, the defendant in this case, and the Changshun County People's Government should be a qualified defendant. The plaintiff sued the Baiyunshan Town Government because it was the wrong target. For this reason, the plaintiff changed the defendant to the Changshun County People's Government and filed an administrative lawsuit. Request to revoke the defendant's administrative action of "Notice of Relocation of Qianqiao Reservoir" in accordance with the law.

In order to prove its claim, the plaintiff submitted the "Changshun County Qianqiao Reservoir Relocation Notice" to this court, proving that the defendant entrusted the Baiyunshan Town Government to issue a notice to the plaintiff to relocate the accused grave;

The defendant county government’s cross-examination opinion: There is no objection to the authenticity of this evidence.

The defendant county government argued that: 1. The "Qianqiao Reservoir Relocation Notice" entrusted by the defendant to the Baiyunshan Town Government was reasonable and legal. The construction site of the Qianqiao Reservoir project is located in the Songna Group of Mengqiu Village, Baiyunshan Town, Changshun County. The project has obtained the "Guizhou Provincial Development and Reform Commission's Approval on the Qianqiao Reservoir Project Proposal" No. 3189 of the Guizhou Development and Reform Commission (2013), and the Guizhou Water Calculation Letter (2 014) No. 79 "Letter from the Guizhou Provincial Department of Water Resources on Sending the Consent Letter for the Construction Plan of Qianqiao Reservoir" and Qianfu Land Use Letter (2015) No. 395 "Guizhou Provincial People's Government's Reply on the Construction and Use of Land in the Qianqiao Reservoir Dam Area" and other relevant approval documents. The Qianqiao Reservoir project is a major project included in the "Guizhou Province Comprehensive Plan for Water Conservancy Construction and Ecological Construction for Stony Desertification Control" and the "National Drought Relief Plan Implementation Plan (2014-2016)" approved by the State Council. Once completed, it can effectively solve the drinking water difficulties for humans and animals and farmland water problems in Mengqiu Village, and provide effective water source guarantee for the local area. It is a public welfare and people's livelihood project. According to relevant regulations, before the implementation of the Qianqiao Reservoir project, the county government set up working groups in 2013 to carry out publicity, mobilization, investigation, measurement, confirmation and other work, and to explain relevant policies. After two years of publicity, mobilization, explanation and other work, the plaintiff not only failed to cooperate with the reservoir construction work, but also illegally added a new house after the construction ban order was issued. The plaintiff's son Chen Guoping has also been inciting members of the group who do not know the truth to obstruct the construction of the reservoir project. On May 10, 2015, the county government entrusted the Baiyunshan Town Government to notify the masses involved in the Qianqiao Reservoir project area in writing, asking the masses to support the construction of the reservoir. The owners of the involved graves must confirm with Baiyunshan Town staff within five working days from the date of announcement, otherwise the graves will be treated as unclaimed graves. The announcement is posted in the Songna Group of Mengqiu Village for easy viewing by the public. After the announcement, the owners of the graves that should be relocated within the reservoir area gradually completed the relocation work. Only the plaintiff's graves were not relocated. On July 9, 2015, the Baiyunshan Town Government notified the plaintiff again in a real-name manner that the plaintiff had agreed to move out in the near future, but the plaintiff’s son Chen Guoping did not agree. So far, the farmers involved in the relocation of graves in the reservoir area have received the grave relocation fees and moved their graves. Only the plaintiff's family has not received the compensation and has not moved the graves. Through more than two years of publicity and mobilization work and the defendant’s organization’s multiple notifications in various forms to the plaintiff to move the grave, the plaintiff learned about the grave relocation through various methods and had enough time to move the grave. Therefore, the “Qianqiao Reservoir Relocation Notice” issued by the defendant was reasonable and legal.

2. The plaintiff’s request to revoke the “Qianqiao Reservoir Relocation Notice” should not be supported. According to Article 13 of the Constitution of the People's Republic of China, "for the needs of the public interest, the state may expropriate or expropriate the private property of citizens in accordance with legal provisions and provide compensation." The Qianqiao Reservoir Project has been included in the "Comprehensive Plan for Stony Desertification Control of Water Conservancy Construction and Ecological Construction in Guizhou Province" and the "National Drought Relief Plan Implementation Plan (2014-2016)" approved by the State Council, and has been approved by the Guizhou Provincial Development and Reform Commission and the Department of Water Resources. Qianqiao Reservoir is a project that benefits the people by promoting the effective social and economic development in minority poverty-stricken areas, improving people's quality of life, and improving the local ecological environment. The total investment of the project is nearly 100 million yuan and the total area is 6.5838 hectares. The project was proposed in 2012, preparations for related work began in 2013, and groundbreaking was launched in April 2015. Starting in 2013, the county government set up a working group to carry out publicity, mobilization, investigation, measurement, confirmation and other work in households to explain relevant policies. Most farmers supported the construction of the project for the public benefit.

To meet the needs of the interests of the people and safeguard the long-term interests of the majority of people, the plaintiff should support the construction of the project and actively cooperate with the tomb relocation and compensation-related work. The "Qianqiao Reservoir Relocation Notice" issued by the defendant in accordance with the law should not be revoked.

In summary, the "Notice of Relocation of Qianqiao Reservoir" issued by the defendant complied with the needs of the public interest and the requirements of the law, and requested the dismissal of the plaintiff's lawsuit.

In order to prove the legality of the accused administrative action, the defendant county government submitted the following evidence to this court within the time limit for presenting evidence:

1. Guizhou Fa Gai Nong Jing (2013) No. 3189 "Guizhou Provincial Development and Reform Commission's Approval of the Qianqiao Reservoir Project Proposal";

2. Guizhou Shuiji (2014) No. 134 "Guizhou Provincial Department of Water Resources' Approval of the Feasibility Study Report on the Changshun County Qianqiao Reservoir Project";

3. Qian Shui Ji Han (2014) No. 79 "Letter from the Guizhou Provincial Department of Water Resources on sending the consent letter for the Qianqiao Reservoir Construction Plan";

4. Qiannan Yifa (2014) No. 66 "Reply of the Qiannan Prefecture Water Conservancy and Hydropower Project Immigration Bureau on the Land Acquisition and Resettlement Planning Report for the Construction of Qianqiao Reservoir Project in Changshun County";

5. Qian Shui Ji (2014) No. 219 "Guizhou Provincial Department of Water Resources' Approval on the Preliminary Design of Changshun Qianqiao Reservoir Project";

6. Qianfu Land Use Letter (2015) No. 395 "Guizhou Provincial People's Government's Approval on the Construction and Use of Land in the Qianqiao Reservoir Dam Area";

7. 6 photos of publicity and distribution of materials to the masses;

8. Announcement from Baiyunshan Town Government on the relocation of graves at Mengqiu Ganqiao Reservoir (Songna);

9. Announcement photos;

10. Changshun County Qianqiao Reservoir Grave Relocation Subsidy Distribution Form;

11. Chen Moumou signed the stub of the grave relocation notice.

Among the above-mentioned evidences: Evidence No. 1-6 proves that the construction project of Qianqiao Reservoir has been legally approved; Evidence No. 7 proves that the defendant county government has carried out relevant mobilization and publicity work to the masses; Evidence Nos. 8 and 9 proves that the defendant notified the grave owners to relocate all the graves in the reservoir area before May 2015; Evidence No. 10 proves that the defendant issued a consistent grave relocation subsidy to each household; Evidence No. 11 proves that the plaintiff Chen Moumou signed the accused grave relocation notice on July 9, 2015;

The plaintiff’s cross-examination opinion: Evidence Nos. 1 to 5 are not relevant to this case, and the legal basis for the relocation notice has no connection with the above-mentioned approval documents, and cannot be used as the reason for the defendant to require us to relocate; Evidence No. 6 was formed on July 20, 2015, and the defendant county government issued a notification of being sued on July 9, 2015. In accordance with the "approval first, then collection" provision, the legality of this evidence is not recognized; the legality of Evidence No. 7 is not recognized. This set of photos reflects the mobilization work of the masses from 2013 to 2014, but there was no land acquisition approval from the provincial government at that time, and it was illegal for the defendant to carry out the expropriation and mobilization work; the legality and relevance of evidence No. 8 and 9 are not recognized; No. 10 shows that before the provincial government issued the land acquisition approval, the defendant was already implementing the tomb relocation, which is illegal, and the tomb relocation subsidies issued are also illegal; there is no objection to the authenticity of Evidence No. 11, but there is an objection to its legality.

The above evidence, after review, is objectively true and from legal sources, and can determine the basic facts of this case, and this court confirms it.

After the review, it was found that the construction site of the Qianqiao Reservoir project is located in the Songna Group of Mengqiu Village, Baiyunshan Town, Changshun County. The project has obtained the "Guizhou Provincial Development and Reform Commission's Reply on the Qianqiao Reservoir Project Proposal" No. 3189 of the Guizhou Development and Reform Commission and the Qian Water Plan Letter (2014) No. 79 "Letter from the Guizhou Provincial Department of Water Resources on Sending the Consent Letter for the Construction Planning of Qianqiao Reservoir" and Qianfu Land Use Letter (2015) No. 395 "Guizhou Provincial People's Government's Reply on the Construction and Use of Land in the Qianqiao Reservoir Dam Area" and other relevant approval documents. The project has been included in the "Comprehensive Plan for Stony Desertification Control of Water Conservancy and Ecological Construction in Guizhou Province" and the "Implementation Plan of the National Drought Relief Plan (2014-2016)" approved by the State Council. Once completed, it can effectively solve the drinking water difficulties for humans and animals and farmland water problems in Mengqiu Village, and provide effective water source guarantee for the local area. On July 9, 2015, the defendant entrusted the People's Government of Baiyunshan Town, Changshun County to issue a "Notice of Relocation of Qianqiao Reservoir", which was delivered to the plaintiff on the same day. The main content of the notice: Due to the construction of Qianqiao Reservoir Project in Changshun County, the plaintiff was required to move his grave from the stockyard before July 15, 2015. If the eviction is not completed on time, the grave will be forcibly relocated. The plaintiff believed that the notice was illegal, so he filed a lawsuit with this court, requesting that the notice be revoked.

It was also found that: So far, the plaintiff has not moved away from its grave located in the material yard of the Qianqiao Reservoir Project in Changshun County, and the defendant has not forced the move away.

This hospital believes that the Changshun County Qianqiao Reservoir Project is one of the 83 backbone water source projects in the "Three Major Water Conservancy Wars" in Guizhou Province. It is a livelihood project that promotes the effective social and economic development of minority poverty-stricken areas, improves people's quality of life, and improves the local ecological environment. The defendant Changshun County Government should strictly follow the procedures stipulated in relevant laws and regulations when organizing and implementing the project. According to the relevant provisions of the "Land Management Law of the People's Republic of China", the "Implementation Regulations of the Land Management Law of the People's Republic of China" and the "Administrative Enforcement Law of the People's Republic of China", specific construction projects that require the use of land must go through strict legal procedures and be approved by the people's government at or above the provincial level, and then be announced and organized for implementation by the people's government at or above the county level. If the resettlement objects are dissatisfied with the demolition and resettlement plan and cannot reach a resettlement compensation agreement, the implementation of the land acquisition plan will not be affected. Those who obstruct the land acquisition for national construction shall be ordered by the land administration department of the people's government at or above the county level to hand over the land; if they refuse to hand over the land, they shall apply to the People's Court for compulsory execution. At the same time, according to Article 12 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Rural Collective Land", "If the expropriation of rural collective land involves houses and other real estate on the expropriated land, the land rights holder may request compensation in accordance with the provisions of Article 42, Paragraph 2 of the Property Law." Since the defendant failed to reach an expropriation compensation agreement with the plaintiff, in principle it should make a decision on whether to expropriate and compensate the plaintiff's expropriated land. However, the defendant issued a "Notice of Relocation of Qianqiao Reservoir" and did not provide evidence to prove that it had made a decision on expropriation and compensation for the cemetery to which the plaintiff claimed rights and the legal basis for issuing a "Notice of Relocation of Qianqiao Reservoir" to the plaintiff. Therefore, the administrative action procedure should be found to be illegal. However, this behavior has no actual impact on the plaintiff's rights and should be confirmed as illegal. Accordingly, in accordance with Article 47 of the "Land Management Law of the People's Republic of China", Articles 25 and 45 of the "Regulations for the Implementation of the Land Management Law of the People's Republic of China", Article 74, paragraph 1, item (2) of the "Administrative Litigation Law of the People's Republic of China", and Article 26 of the Supreme People's Court's "Interpretation of Several Issues Concerning the Implementation of the "Administrative Litigation Law of the People's Republic of China", the judgment is as follows:

It is confirmed that the administrative act of the defendant Changshun County People's Government in issuing the "Qianqiao Reservoir Relocation Notice" to the plaintiff Chen Moumou on July 9, 2015 was illegal.

The first-instance case acceptance fee of 50 yuan shall be borne by the defendant Changshun County People's Government.

If you are dissatisfied with this judgment, you can submit an appeal to this court within fifteen days from the date of delivery of this judgment, and submit copies according to the number of opposing parties, and appeal to the Guizhou Provincial Higher People's Court. If there is no appeal within the time limit, this judgment will become legally effective.

Chief Judge Liu Yubing

Judge Wang Xiaohong

Judge Jin Changhong

May 17, 2016

Clerk Cheng Cheng