On recognizing the response of the Office of Urban Planning Control of the city as illegal

No.6001-22-00-6ap/2615 dated 07/13/2023

Plaintiff: S.D.

Defendant: KSU "Department of Urban Planning Control of the city"

Interested party: LLP "F"

The subject of the dispute: the recognition of the response dated May 31, 2022 as illegal, the recognition of the defendant's actions (inaction) to avoid filing a lawsuit with the judicial authorities on the recognition of the ventilation system created without obtaining permits as illegal

Review of the plaintiff's cassation appeal.

PLOT: On April 11, 2022, the plaintiff applied to the defendant to file a lawsuit with the judicial authorities to recognize the ventilation system installed on the exterior wall of the apartment building No. 114 on Panfilov Street in the city, from the 1st to the 5th floors as an unauthorized construction.

On April 29, 2022, a response was provided stating that the defendant had previously filed a lawsuit against F LLP for forcing the dismantling of the ventilation system installed on the outside of the walls of apartment building No. 114\112 on Panfilov Street in the city, from the 1st to the 5th floors.

The decision of the specialized interdistrict economic court of the city of June 22, 2020, which entered into force, denied the claim.

On May 23, 2022, the plaintiff appealed to the defendant with a complaint about the specified response. On May 31, 2022, the respondent provided an explanatory response.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are cancelled, the claim is returned. Conclusions: The local courts, refusing to satisfy the claim, were motivated by the fact that the defendant, performing the actions required by the plaintiff, appealed to the court on the legality of the construction and reconstruction of the ventilation system.

In this regard, the defendant's actions to provide an explanatory response do not contradict the current legislation. At the same time, the courts did not take into account the following circumstances when resolving the dispute on the merits.

In accordance with part 2 of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for in this Code.

By virtue of parts 1,2 of Article 3 of the CPC, this Code regulates relations related to the implementation of internal administrative procedures of state bodies, administrative procedures, as well as the procedure for administrative legal proceedings.

The participants in the relations regulated by this Code are state bodies, administrative bodies, officials, as well as individuals and legal entities. It follows from the meaning of the above norms that public law relations arise between subjects of law regarding the exercise by one of the participants of his powers in relation to the other.

The subject of the administrative claim does not meet the above criteria, since the plaintiff claims to compel the administrative authority to exercise its powers in relation to interested persons.

By rejecting the claim, the courts came to the correct conclusion that the defendant, when considering the plaintiff's appeals, had taken appropriate measures to restore the violated rights of the owners in accordance with the requirements of the law and the limits of administrative discretion. At the same time, the courts, noting the absence of the subject of the administrative dispute, considered the claim on its merits, while it was subject to refund.

 

 

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases