On recognition as illegal and partial cancellation of the protocol decision and reinstatement in the queue to receive an apartment
No.6001-23-00-6ap/1413 dated 10/23/2023
Plaintiff: M.U.
Defendant: State Institution "Housing Management"
The subject of the dispute: on recognition as illegal and partial cancellation of the protocol decision, reinstatement in the queue for an apartment
Review of the defendant's cassation complaint PLOT:
Plaintiff M.U. since September 10, 2012, citizens of the Republic of Kazakhstan in need of housing have been registered in the category of single-parent family.
By the decision of the housing Commission under the Mayor's Office of the city dated June 20, 2022, the Plaintiff was removed from the register of citizens in need of housing from the communal housing stock on the grounds that over the past twelve months, the Plaintiff's total average monthly income for each family member exceeded 3.1 times the minimum subsistence level established for the relevant fiscal year by the law on the Republican the budget.
The plaintiff filed the above claim with the court, arguing that she had been unreasonably removed from the register of citizens in need of housing, the family's income had been exceeded due to her part-time work in recent months, and all the circumstances of the case had not been taken into account.
Judicial acts:
1st instance: the administrative claim was satisfied: paragraph 40 of Appendix No. 3 of the protocol decision of the Housing Commission under the Mayor's Office of the city dated June 20, 2022 No. 1/4 on removing M.U. from the queue for housing from the state housing fund was declared illegal and canceled; the State Institution "Housing Management" was charged with restoring the queue of M.U. for housing housing from the state housing stock since registration on September 10, 2012.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: by virtue of subparagraph 2) of paragraph 1 of Article 67 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), dwellings from communal housing stock or dwellings rented by a local executive body in a private housing stock are provided for use by citizens of the Republic of Kazakhstan in need of housing and registered with socially vulnerable groups. the population specified in the sub-paragraphs 1-1) 5), 7), 8), 10) and 11) Articles 68 of this Law, having a cumulative average monthly income for the last twelve months before applying for housing for each family member below 3.1 times the minimum subsistence level established for the relevant fiscal year by the law on the republican budget.
The grounds for de-registering citizens in need of housing from the state housing stock or housing rented by a local executive body from a private housing stock are provided for in article 73 of the Law, such grounds include:
1) if there are no grounds for providing housing from the state housing stock or housing rented by a local executive body from a private housing stock;
2) departure for permanent residence in another locality or termination of employment relations in a state enterprise or a state institution;
3) submission by a citizen of information that does not correspond to reality about the need for housing from the state housing stock or housing rented by a local executive body from a private housing stock;
4) obtaining a land plot and completing the construction of their own home or purchasing a home;
5) obtaining a rental home without the right of foreclosure.
According to part 2 of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
By virtue of the principle of proportionality provided for in Part 1 of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests of the participant in the administrative procedure and the company.
The court of first instance, guided by the above-mentioned norms, reasonably satisfied M.U.'s claim, recognizing it illegal, canceled paragraph 40 of appendix No. 3 of the protocol decision of the housing commission on the exclusion of the plaintiff from the queue for housing from the state housing fund, and also imposed on the defendant the obligation to restore the plaintiff in the queue for housing from the state housing fund from the moment of registration since it has been reliably established that the plaintiff, at the time of her placement in the queue as a citizen in need of housing, met the requirements of housing legislation, namely: she has been waiting in line for housing since 2012 (10 years), belongs to socially vulnerable segments of the population in the category of incomplete family, is a pensioner and a disabled person of the second group.
It was established that M.U. was removed from the relevant accounting, since over the past 12 months the cumulative average monthly income for each family member exceeded 3.1 times the subsistence minimum set for the corresponding fiscal year. Instead of the stipulated 115,905 tenge, the family income (excluding the unborn child at that time) amounted to 166,104 tenge.
At the same time, at the time of the plaintiff's exclusion from the housing queue (06/20/2022), her daughter, who was a family member, had no income due to the birth of a child (08/08/2022).
Taking into account the above circumstances, the court of first instance, observing a fair balance of interests of the participant in the administrative procedure and society, in this case, the plaintiff, belonging to socially vulnerable segments of the population, reasonably and fairly satisfied the claim of M.U. in full.
The appellate judicial board reasonably agreed with the above-mentioned conclusions of the court of first instance, which upheld the court's decision.
Since the circumstances of the case have been established correctly by the local courts, and the norms of substantive and procedural law have been applied correctly, no grounds have been established for the cancellation or amendment of the contested judicial acts.
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