On the recognition as illegal and cancellation of the resolution of the Akimat on the permission for the reconstruction of an individual residential building
No. 6001-22-00-6ap/1689 dated 03/28/2023
Plaintiff: Because
The defendant: Akimat of the city of Nur-Sultan, State Institution "Department of Architecture, Urban Planning and Land Relations in the city of Nur-Sultan"
The subject of the dispute: on the recognition as illegal and cancellation of the resolution of the Akimat on the permission for the reconstruction of an individual residential building
Review of the plaintiff's cassation complaint PLOT:
According to the privatization agreement dated January 24, 1994, T.K., T.A., T.A., T.A. owns an apartment at the address: Nur Sultan, Keregetas Street, house A, apartment B.
By a decree of the Akimat dated April 24, 2007, T.K. and her family members were granted the right of common shared ownership of an adjacent land plot of 0.1168 hectares, including a share of 0.0214 hectares.
On October 31, 2007, the plaintiff was issued an act of ownership of the land plot at the above address.
On March 25, 2008, D.M. and her family members were granted a plot of land with an area of 0.1168 hectares, including a share of 0.0213 hectares at the address: Keregetas Street, house A, apartment B.
On April 9, 2008, the act of ownership of the land was issued.
By the decree of the Akimat of October 3, 2018, the reconstruction of an individual residential building on the specified land plot (hereinafter referred to as the contested resolution) was allowed.
On May 2, 2019, the above-mentioned facility was put into operation after reconstruction, and an acceptance certificate was drawn up, which was registered on December 24, 2019.
By the decree of the Akimat dated November 5, 2020, DM and RV were granted the right of common shared ownership of a land plot with an area of 0.1175 hectares, including a share of 0.0220 hectares. On November 26, 2020, a new identification document was issued for this land plot.
Judicial acts:
1st instance: the claim is partially satisfied.
Appeal: the court's decision has been changed, and the court's decision regarding the satisfaction of the claim has been overturned with a new decision rejecting the claim.
Cassation: the decision was overturned, the case was sent for a new hearing.
Conclusions:
The court of first instance reasoned that the reconstruction of the apartment building carried out by D.M., as a result of which the boundaries of the premises were changed, affects the interests of T.K., who is the owner of the premises on the site of which the extension was erected.
The Court of First Instance drew attention to the fact that according to Article 135 and part three of Article 136 of the CPC, these claims are a claim for recognition and can be filed within five years.
The appellate instance did not agree with the above conclusions of the court of first instance, and correctly indicated that the plaintiff's claims were a challenge claim.
At the same time, the conclusion of the court of appeal that the plaintiff is not a person who participated in the administrative procedure is erroneous.
Because K., being the adjacent owner of the housing construction and the equity owner of the adjacent land plot, had to be involved in the administrative procedure by requesting consent for the reconstruction being carried out by D.M.
In this regard, the time limit for filing a claim should be calculated in accordance with the first part of Article 136 of the CPC, the specified period is not preemptive and can be restored by the court.
The court of first instance considered the claim on its merits, and therefore the procedural time limit for filing a claim should be considered restored and the issue of its application should not be reviewed in higher courts.
The court of appeal overturned the court's decision with a new decision, violated the norms of the procedural law and went beyond the appeal hearing.
The violations committed by the court of appeal are significant and could not be eliminated in the framework of the cassation proceedings, the decision of the court of appeal was subject to cancellation with the referral of the case for a new hearing to the court of appeal.
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