On challenging the decision of the land commission in granting temporary land use for a land plot; resolutions of the Akimat on granting a land plot

No.6001-23-00-6ap/491 dated 08/10/2023

Plaintiff: LLP "M"

The defendant: Akimat of the city , KSU "Management of land relations of the city" 106

Interested party: LLP "D"

The subject of the dispute: on challenging the decision of the land commission of the city on the refusal of LLP "M" to provide temporary land use for the land; the resolution of the Akimat on the provision of land to LLP "D".

Review of the plaintiff's cassation appeal.

Judicial acts:

1st instance: the claim was denied.

Appeal: the court's decision is upheld. Cassation: judicial acts are cancelled, the claim is returned.

Conclusions: The acceptance of the court proceedings and consideration of the merits of the above-mentioned claims are erroneous.

At request No. 1. According to paragraph 12) of the second part of Article 138 of the CPC, the court (judge) issues a ruling on the return of the claim if there is a court decision that has entered into force, made in a dispute between the same parties, on the same subject and on the same grounds.

It has been reliably established, and this is not denied by the parties, that M LLP had previously applied to the court for the cancellation of the resolution of the Akimat of the city dated November 13, 2018 No. 4/452-3048 on the refusal of the plaintiff to grant the right of temporary land use to the land plot.

That is, the subject of the said claim was the resolution of the akimat, adopted on the basis of the decision of the land commission of the city dated November 1, 2018 on the refusal of LLP "M" to grant temporary land use to the land.

The decision of the specialized interdistrict economic Court of the city of October 4, 2018, which entered into force, denied the application.

However, the plaintiff, abusing his procedural rights by reformulating the claims, again filed an administrative claim in the same dispute between the same parties, on the same subject and on the same grounds.

At the request of No. 2. It follows from the circumstances of the dispute that the plaintiff is not a participant in administrative procedures, since he is challenging an administrative act issued against another person.

By virtue of part five of Article 136 of the CPC, a person who has not participated in an administrative procedure, whose rights, freedoms and legitimate interests are affected by an administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of an administrative act, but no later than one year from the date of its adoption.

Based on the meaning and content of the above-mentioned norm of Article 136 of the CPC, the specified one-year period is not subject to restoration. The contested administrative act was issued on January 18, 2021. The lawsuit was filed on April 14, 2022.

Accordingly, the one-year deadline for filing a lawsuit has expired.

In accordance with the eighth part of Article 136 of the CPC, the inability to restore the missed deadline for applying to the court is the basis for returning the claim.

 

 

 

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