An administrative claim for coercion to adopt a favorable administrative act
No. 6001-23-00-6ap/875 dated 24.10.2023
Plaintiff: Sh.L.
The defendant: akim of the district
The subject of the dispute: the coercion to adopt a favorable administrative act
Review of the plaintiff's cassation complaint PLOT:
Sh.L. filed the above-mentioned claim with the court, arguing that on November 3, 1992, she and her son signed a privatization agreement No. 484 with the N.B. Village Council of People's Deputies of the city of S., under which she acquired joint ownership of an apartment at the address: East Kazakhstan region, district A., settlement N.B. 3, 50 let O. Street, apartment 1, with a total area of 86 m2, including a residential area of 23 m2.
The cost of the apartment was 17,084 rubles, the plaintiff paid 30,600 coupons and 3,484 rubles. In his opinion, he purchased and paid for an apartment with an area of 86 m2, however, only 34.1 m2 was actually transferred to ownership, so he applied to the defendant for additional housing with an area of at least 51.9 m2.
This was denied to the plaintiff, as an error was made in the privatization agreement No. 484 dated November 3, 1992 regarding the housing area.
On June 9, 2022, the plaintiff again appealed to the akim of the district with a similar request for additional housing.
On June 24, 2022, a hearing was held with the participation of the applicant's representative, and on June 28, 2022, the akim of the district, in accordance with paragraph 1 of Article 67 of the Housing Relations Act (Housing Act), decided to reject Sh.L.'s application for additional housing.
Disagreeing with the defendant's refusal, the plaintiff asked the court to force him to adopt a favorable administrative act to eliminate violations of the plaintiff's rights and oblige him to provide him with a private apartment of at least 51.9 m2.
Judicial acts:
1st instance: the claim was denied.
The court of first instance also issued a private ruling against the akim of the region on the violation by the akim of the district of the requirements of subparagraph 1) of the first part of Article 70 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (APPC), since the appeal of Sh.L. for the allocation of additional housing was considered twice on December 2, 2021 and June 28, 2022, whereas by virtue of the above-mentioned norm The administrative procedure for the second appeal was subject to termination.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: Having studied the case materials and the arguments of the cassation appeal, the judicial board comes to the following conclusions.
1. In rejecting the claim and applying the applicable law, the SMAS proceeded from the fact that (key arguments):
a) for the period of the plaintiff's privatization of the apartment, the Regulation on the Privatization of Public Housing Stock in the Republic of Kazakhstan, approved by the resolution of the Cabinet of Ministers of the Republic of Kazakhstan, was in force
No. 33 dated January 24, 1992 (Regulation), which became invalid by Resolution of the Government of the Republic of Kazakhstan No. 6773 dated July 2, 2013;
b) according to the above-mentioned Provision, the plaintiff's arguments that he had privatized the corridor of the first floor are not justified, since this non-residential building, being part of the condominium facility, that is, the common property of the apartment owners, was not privatized.;
c) the decisions of the court No. 2 of the district of November 14, 2019 and May 24, 2021, which entered into force on the claim of Sh.L. to the akim of the district,
The Office of the village Akim, NAO State Corporation Government for Citizens (NAO) established that the room on the second floor is part of the total area of apartment No. 2, currently owned by D.G. (previously the apartment was privatized under the privatization agreement No. 775 dated December 22, 1992 B.V.), and privatized by the plaintiff The apartment consists of a room of 19.4 m2, a kitchen of 9 m2, an entrance hall of 1.9 m2, a bathroom of 3.8 m2, a veranda of 13.3 m2. The above circumstances, by virtue of part three of Article 1 of the CPC and part two of Article 76 of the CPC, are binding on the court and are not subject to proof again. In this regard, the plaintiff's arguments that he had privatized an apartment with a total area of 86 m2 are untenable, since, as indicated above, changes were made to the privatization agreement and the area of the apartment was brought into line with the privatization agreement No. 484 dated November 3, 1992.;
d) the plaintiff currently owns an apartment, and therefore the akim of the district does not have the grounds provided for in article 67 of the Housing Act to provide him with housing from the communal housing stock or housing rented by a local executive body from a private housing stock;
e) the plaintiff's arguments that during the privatization of the apartment he made an overpayment in the area of 86 m2 were not taken into account by the court, since the specified dispute over the reimbursement of overpaid funds can be resolved in a civil procedure.
2. Leaving the decision of the SMAC unchanged, and agreeing with its conclusions in full, the Court of Appeal stated that (key arguments):
a) according to subparagraph 2) of the second part of Article 129 of the CPC, the burden of proof is borne by: In a claim for coercion, the defendant is responsible for the facts that became the basis for refusing to accept the requested administrative act, and the plaintiff is responsible for the facts that justify the adoption of an administrative act favorable to him. Thus, the plaintiff must prove that the defendant must provide him with a living space of at least 51.9 m2, and the defendant, in turn, must prove that there are no grounds for providing the plaintiff with housing of 51.9 m2. The defendant has provided such evidence, but the plaintiff has not proven that the defendant violated his rights.;
b) the plaintiff's claim follows from the wording of the Privatization Agreement dated November 3, 1992, which was amended by a judicial act, in this regard, the defendant reasonably refused to provide the plaintiff with additional living space of 51.9 m2;
c) provision of living space to the plaintiff in another place is possible only if there are grounds specified in the Housing Act. Sh.L. has a dwelling in the Republic of Kazakhstan on the right of private ownership, is not registered as needing housing, her apartment is not recognized as emergency
housing, which she does not dispute. In such circumstances, the defendant, having considered the plaintiff's appeal, reasonably refused to provide him with a living space with an area of at least 51.9 m2.
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