On the compulsion to adopt a favorable administrative act

No.6001-23-00-6ap/2239 dated 24.10.2023

Plaintiffs: T.M., K.T.

The defendant: akim of the region

The subject of the dispute: the compulsion to adopt a favorable administrative act

Review of the plaintiffs' cassation complaint PLOT:

The plaintiffs are the owners of an apartment building at the address: city of K., M.Ya. street, house number 30, apartment 1. An apartment building has been built on a neighboring plot at 11/1 S. Street, the customer and owner of which is the Limited Liability Partnership (LLP) "ASM".

The plaintiffs are appealing against the decision of the akim of the city of K. dated March 9, 2022 to change the purpose of the land plot, the right of land use for which was granted to ASM LLP from "maintenance of the production base" to "construction of an apartment building with integrated commercial premises."

The claim is motivated by the fact that the change in the purpose of the land plot, as well as the construction of an apartment building, were carried out with gross violations of the law and violate the rights and legally protected interests of the plaintiffs.

Judicial acts:

1st instance: the claim was returned on the basis of subparagraph 11) of the second part of Article 138 of the CPC as not subject to consideration in administrative proceedings.

Appeal: the court's ruling remains unchanged.

Cassation: judicial acts are cancelled. The case has been sent to the court of first instance for a new hearing in a different composition of the court.

Conclusions: After examining the case materials and hearing from the plaintiff's representative, the judicial board came to the following conclusions.

1. SMAS justified the return of the claim by the fact that the plaintiff is challenging the decision of the akim of the city of K. dated March 9, 2022, which is an administrative act. In such circumstances, in the opinion of this court, the requirement to compel the akim of the A. region to adopt a favorable administrative act is not subject to consideration in administrative proceedings, since the subject of contestation in this case is the decision of the akim of the city of K., the form of completion of the internal administrative procedure of the state body cannot be challenged in court.

2. The Court of Appeal fully supported the above-mentioned argument of the SMAS and pointed out that the court of first instance made a reasonable conclusion that the plaintiffs' claim to compel them to adopt a favorable act due to the illegality of the decision of March 9, 2022 and disagreement with the results of the completion of the internal administrative procedure of the state body could not be considered in administrative proceedings..

3. The Judicial Board considers that such a conclusion of the local courts directly contradicts the legislation applicable in this case, therefore, the return of the claim was carried out unlawfully and unreasonably by the local courts.

Thus, the courts recognized the resolution of the akim of the city of K., disputed by the plaintiffs.

as of March 9, 2022, a favorable administrative act in respect of ASM LLP.

Based on the stated claim, the akim's resolution disputed by the plaintiffs is illegal, since the change in the purpose of the land plot by this resolution was carried out in contradiction with the requirements of the law, an apartment building was erected on the land plot next to the plaintiffs with numerous violations, and that, in the plaintiffs' opinion, violates their rights and legally protected interests.

However, the judicial acts contested by the cassator do not indicate the circumstances that are of critical importance in the legal sense for determining the validity of the return of the claim: whether the contested resolution of the akim of the city of K. may be an onerous administrative act against the plaintiffs; whether the plaintiffs were involved as interested parties in the administrative procedures for granting land use rights to ASM LLP, and also, when changing the purpose of the land plot; how does the administrative act contested by the plaintiffs violate or affect their rights and legally protected interests, respectively, whether they had legal grounds for filing this claim; whether the defendant in this case was correctly identified, given that the plaintiffs filed a complaint against the contested administrative act to the defendant, who forwarded it to the territorial authorized management body land resources.

These and other significant circumstances have not been investigated by the local courts and, consequently, they have not been given a proper legal assessment.

In this situation, the judicial board considers that the local courts violated the requirements of the procedural law, including, but not limited to:

incorrect definition and clarification of the range of circumstances relevant to the case (subparagraph 1 of the first part of Article 427 of the CPC);

violation or improper application of the norms of substantive and procedural law (subparagraph 4) of the first part of Article 427 of the CPC);

When considering an administrative case, the court is obliged, while maintaining objectivity and impartiality, to ensure that each of the participants in the administrative case has an equal opportunity and conditions for exercising their rights to a comprehensive and complete investigation of the circumstances of the administrative case (Part one of Article 8 of the CPC);

administrative proceedings are conducted on the basis of the active role of the court (part one of Article 16 of the CPC);

the court, not limited to explanations, statements, petitions of participants in the administrative process, arguments, evidence and other materials of the administrative case presented by them, comprehensively, fully and objectively examines all factual circumstances relevant to the proper resolution of the administrative case (Part two of Article 16 of the CPC);

the court, on its own initiative or at the reasoned request of participants in the administrative process, collects additional materials and evidence, as well as performs other actions aimed at solving the tasks of administrative proceedings (part three of Article 16 of the CPC);

When determining the subject of a claim, the court is not bound by the wording of the claims, the text of the claim and the documents attached to it or submitted later. The court has the right to assist the party in formulating and (or) changing the claims with a preliminary explanation of the legal consequences (part one of Article 116 of the CPC).

In case of such violations committed by local courts, their rulings on the return of the claim are subject to cancellation with the referral of the case for a new hearing. 

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