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คำแปลวินิจฉัยของศาลปกครองไทย

คำแปลวินิจฉัยของศาลปกครองไทย

Department of Highways Neglects its Official Duty to Build or Correct A Drainage Passing A Highway
According to Section 32 of the Highways Act, B.E. 2535 (1992), the Defendant has the power to, as necessary, build or correct a drainage passing a highway, or build or correct a drainage from a highway, to deviate water to a nearby public water source. Therefore, in the case where there was a damage owning to the construction of the huge drainage tunnels under Highway No. 33 in order to drain water through such tunnels from the mountain range to the Plaintiffs' land, the Defendant had to solve such problem by performing the duty in compliance with the above-mentioned provision. Despite the fact that the Defendant solved the problem by many means, such as digging a path to enable the water flowing out in parallel with Highway No. 33, the alleviations of such grievance or injury for the Plaintiffs were not adequate. The Plaintiffs were still damaged owning to the drainage of water through the tunnels flowing to their land. Thus, it was deemed that the Defendant did not build or correct a drainage passing a highway pursuant to Section 32 of the said Act. This case was considered that the Defendant committed a wrongful act arising from the neglect of official duties required by the law to perform; the Defendant therefore was required to provide the redress of the grievance or injury for the Plaintiffs by building or correcting a drainage passing a highway so as to prevent the damage upon the Plaintiffs' land.
อ่าน 3
อ่านรายละเอียด
Compensation for not notifying the status of the petition for the monthly old-age allowance to the petitioner
According to Clause 6 (3) and Clause 7 of the Ministerial Regulation on the Criteria and Method for the Disbursement of Subsistence Allowance for Older Persons, B.E. 2552 (2009), an elder person who is about to reach sixty years of age in the next government’s fiscal year must apply for the old-age monthly allowance with the competent authorities in November every year in order to obtain such allowance. Since the Plaintiff claimed to apply for such aid during the unprescribed time yet he was unable to provide any evidence thereof, it can be deemed that the Plaintiff was not entitled to receive the allowance during the B.E. 2558 government’s fiscal year as he did not follow the stipulated procedure. After examining the Plaintiff’s petitions, the Defendant announced the additional eligibility list for monthly old-age allowance of the B.E. 2559 government’s fiscal year (1st October B.E. 2558 to 30th September B.E. 2559) with the Plaintiff’s name in the list even though he did not adhere to the procedure of the said Ministerial Regulation. The Plaintiff eventually acquired the allowance since October B.E. 2558 henceforward. Therefore, the Defendant did not neglect its official duties required by the law to be performed and did not commit a wrongful act pursuant to Section 420 of the Civil and Commercial Code. However, since the Defendant did not notify the Plaintiff about the amendment of the eligibility list, the Plaintiff still misunderstood that he had to take further legal actions to gain the monthly allowance. Consequently, the Defendant was liable to pay the compensation to the Plaintiff for the costs incurred from filing several petitions to the relevant authorities and filing a case with Administrative Court in the amount of 5,000 baht.
อ่าน 104
อ่านรายละเอียด
Groin Construction Causing Land Erosion
The Defendant No.1 implemented the Bang Nara Watershed Water Transmission and Maintenance Project. Under the project, it constructed rubber mound groins to prevent shoreline erosion. The Plaintiff claimed that the groin built adjacent to the Plaintiff’s land caused erosion to his land. He was aggrieved by the Defendant No.1’s construction so he filed a case with the Administrative Court. The Supreme Administrative Court held that the Defendant No.1 accepted that the construction of rubble mound groins caused erosion to the Plaintiff’s property including a parcel of land and coconut trees. Thus, the Defendant No.1 committed a wrongful act against the Plaintiff pursuant to Section 420 of the Civil and Commercial Code. As a State agency who was responsible for the groin construction, the Defendant No.1 shall be liable to the Plaintiff who was injured by the act committed by its official in the course of his performance of duty, pursuant to Section 5 paragraph one of the Act on Liability for Wrongful Act of Officials, B.E. 2539 (1996). To compensate for the damage, the Defendant No.1 shall pay the Plaintiff in the amount of 2,224,000 Thai Baht with interest of 7.5 percent per year from the day the plaint is filed until the Defendant No.1 fully pays compensation, within 60 days from the day the judgment is delivered, the court fees shall be returned to the Plaintiff in proportion to the outcome of the case and other reliefs requested in the plaint shall be dismissed.
อ่าน 109
อ่านรายละเอียด
Wastewater Nuisance Caused by Pig Farming
The Plaintiff was an owner of a land adjacent to a pig farm. Eucalyptus trees planted in his land died because wastewater leaked from a sewage treatment pond through soil and overflew a ridge of soil into the Plaintiff’s land and pond. The Plaintiff made a complaint about the issue to the Defendant No.5 many times and requested the Defendants No.1 to No.5 to order the Defendant No.6 to resolve the nuisance. The Defendant No.6 solved the problem by making the soil ridge bigger to improve the sewage treatment system as instructed by the Defendant No.5 but the wastewater had been continuously leaking from the pig farm to the Plaintiff’s land. The Plaintiff then filed a case with the Administrative Court. The Supreme Administrative Court held that the Defendants No.4 and No.5 had not performed their duties required by the law, pursuant to Section 9 paragraph one (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). They did not exercise its power to resolve the issue by imposing a fine, suggesting a halt in operation, suspending or revoking a permit, or prohibiting the use or exploitation of the source of pollution under Sections 82 and 83 of the Enhancement and Conservation of National Environmental Quality Act, B.E. 2535.
อ่าน 77
อ่านรายละเอียด
Filing of A Case concerning The Protection of Public interest
In the case of filing the case with Court requesting the Court to revoke the resolution of the Provincial Land Reform Committee which permitted a person to use land in the land reform area for business operation of cassava drying yard, such case should be filed with the Court within ninety days as from the date the cause of action was known or should have been known. In this case, when the Plaintiff filed a complaint with the Damrongtha m Provincial Center, it was deemed that the Plaintiff had known or should have known the cause of action. When the Plaintiff filed the aforementioned case after the said prescription, it was considered that the Plaintiff filed the case after the lapse of time within which an administrative case could be filed. However, the grievances from d ust, noise pollution, and foul odor as the result of business operation of cassava drying yard might adversely affect not only the Plaintiff whom his house located nearby the business establishment but also the residents who Lived around such area; additionally, these grieva nces might negatively affect people who passed by this area, as well. It was deemed that it was a filing of a case concerning the protection of public interest which it might be filed at any time according to Section 52, paragraph one of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). The Administrative Courts therefore accepted the case for trial and adjudication even after the lapse of time for filing such case.
อ่าน 210
อ่านรายละเอียด
Ordering the Office of the Consumer Protection Board to consider product safety complaints
The Plaintiff concluded an Agreement of Purchase and Sale by agreeing to purchase an apartment with a business operator. Later, the Plaintiff found that the elevators in the building were not properly working. The Plaintiff sent a letter asking the business operator to fix the problem for several times, but the said problem had still occurred. In addition, a water heater inside the bathroom was wrongly installed, which may be harmful to life and property of the Plaintiff and other residents living in the same building. The business operator had ignored the said problem. The Plaintiff then lodged her complaints relating to such unsafe products to the Defendant No.1 on 10th and 11th October 2013. The Defendant No.1 did not issue a summon instructing the business operator to appear for giving statements or evidence as necessary for assisting in the consideration of competent officials until 10th April 2014, which was the date the Plaintiff filed a plaint to the Administrative Court of First Instance. The act of the Defendant No.1 was not consistent with the Consumer Protection Act, B.E. 2522 (1979). Therefore, the Administrative Court of First Instance held that the Defendant No.1 performed its duty as required by the law with unreasonable delay. The Court ordered the Defendant No.1 to take action in investigating the Plaintiff’s complaints within forty-five days from the date the judgment is final. The Supreme Administrative Court affirmed.
อ่าน 196
อ่านรายละเอียด
Unfair Discrimination and Infringement of Equality of Insured Persons by Limiting the Number of Dialysis Treatment
The Plaintiff who was an insured person under the Social Security Act, B.E. 2533 (1990) was diagnosed with having chronic kidney disease and a doctor determined that he had to receive dialysis treatment. The Plaintiff was charged for the treatment; however, he could not afford to pay the medical fees so he claimed medical expense reimbursement under the Social Security Act. Clause 5 (1) (b) of the Rules, Conditions and Rate of Medical Fees for Renal Replacement Therapy, the annex of the Announcement of the Medical Committee on the Rule and Rate of Benefit Reimbursed from Illness Not Occurring from Work, specifies that the rate of dialysis fees shall be no more than 1,500 Baht per time and no more than 4,500 Baht per week and an insured person shall be responsible for an excess of the fees. Consequently, the Plaintiff could not access to medical treatment because he could not afford to pay uncovered fees. Thus, the Plaintiff filed a case with the Administrative Court requesting the Court to revoke Clause 5 (1) (b) of the rules and to order the Defendants No.1 to No.4 to determine how the Plaintiff would receive dialysis treatment by not requiring him to pay an excess of the dialysis fees or treatment approval. The Supreme Administrative Court held that the limitation of the number of dialysis treatment per week was different from the benefit provided by the Universal Health Coverage Scheme and created a burden to an insured person since he or she had to pay an excess of medical expenses. In addition, there was no adequate reason to support the decision to limit the number of treatment per week to be different
อ่าน 205
อ่านรายละเอียด
Municipal Ordinance Prescribing the Location of the Storage Containing Hazardous or Chemical Substance that may be Hazardous to Health
By the virtue of Section 32 (2) of the Public Health Act, B.E.2535 (1992), the municipal government had the power to issue the Municipal Ordinance prescribing the storage containing hazardous or chemical substances which might be hazardous to health should be located not less than 500 meters away from the community. This was the solution to the complaints of people in that area regarding the smell of the chemical substances from the operation of the business. Also, it was the provision relating to the supervision of the hygiene condition of the establishment and the preventive measure for health in relation to health hazardous business which was within the discretion of the Mayor to do accordingly. When the provisions of such Municipal Ordinance was not contrary to or inconsistent with the Ministerial Regulation Prescribing Rules, Procedures, and Measures on Control of Health Hazardous Establishment, B.E. 2545 (2002), the provision prescribing the location of the storage should not be less than 500 meters away from the community was therefore lawful.
อ่าน 190
อ่านรายละเอียด
Liability for Damage Caused by Fallen Tree Branches on a Car That Parked in Time-limited Parking Street
According to Section 89 paragraph one (6) and (10) of Bangkok Metropolitan Administration Act B.E. 2528 (1985), Bangkok Metropolitan Administration (BMA) has the authority and duty to carry out the maintenance of roads, waterways, drainage system and public space. In this case, the officials of the Defendant failed to perform the duty to maintain the trees within its district by not trimming tree branches that may cause danger to people’s lives and properties. Consequently, branches of the tree that situated beside the street fell on a car due to a mere slight rain. Hence, it was deemed that the Defendant neglected its official duty required by the law to perform and eventually committed a wrongful act pursuant to Section 420 of the Civil and Commercial Code. However, the car owner was at fault as well for not only parking under the tree during the rain which was contrary to the level of care that someone of ordinary prudence would have exercised under the same circumstances knowing that brittle trees and their branches are prone to fall, but also for parking on restricted street in non-prescribed hours. Therefore, the responsibility for damage caused by fallen tree branches on the car shall not be vested fully on the Defendant but shall be greater attributed to the car owner since the damage was inflicted by the negligence along with the failure to obey the traffic regulation of the car owner.
อ่าน 282
อ่านรายละเอียด
Bangkok Metropolitan Administration Neglects its Official Duty to Maintain Pedestrian Path
According to Section 89 paragraph one (6) of Bangkok Metropolitan Administration Act B.E. 2528 (1985), the Defendant has the authority and duty to provide and maintain roads, waterways and drainage system, therefore, it was directly legal obligation for the Defendant to maintain, adjust and repair the concrete pedestrian path along the Saen Saep Canal in the case where there were any defects in any or all parts thereof that may be dangerous. Furthermore, the broken part of such pedestrian path was necessary to be repaired urgently in order to ensure the safety of pedestrians. Even though, there was the temporary reparation by covering the broken part of the pedestrian path with a wooden broad, this wooden broad was not durable enough. As well, the Defendant argued there were the operational problems that hindered the relevant authorities to perform duties required by the law. Then there was a construction contract to rebuild or repair the mentioned pedestrian path; however, no action was taken until the contract period was terminated and the repaired part deteriorated as time passed. Thus, from the aforementioned action, it was deemed that the Defendant neglected official duty required by the law to maintain, adjust and repair the said pedestrian path.
อ่าน 305
อ่านรายละเอียด

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