On the recognition of an illegal action and the cancellation of an onerous administrative act and the compulsion to adopt a favorable act
No. 6001-22-00-6ap/1635 dated 31.01.2023
Plaintiff: B.E.
Respondent: Department of the Border Guard Service of the National Security Committee of the Republic of Kazakhstan for the Turkestan region
The subject of the dispute: the recognition of the illegal action and the cancellation of the burdensome administrative act of September 23, 2021, forcing the defendant to adopt a favorable act
Review of the plaintiff's cassation complaint PLOT:
B.E. served in the Border Guard Service from April 28, 2003 to April 10, 2021.
The length of service at the time of dismissal is 17 years, 10 months and 20 days. He has a family, a spouse and three minor children.
During the period of service from January 1, 2018 to April 10, 2021, B.E. received current housing payments based on a report recognizing him as in need of housing in the total amount of 5,768,340 tenge. Due to the dismissal of the plaintiff to the reserve and the loss of the status of a military serviceman, since April 11, 2021, the TJV has been terminated.
Based on the plaintiff's report dated March 19, 2021 on the payment of lump-sum housing payments for the period from September 11, 2010 to December 31, 2017, on May 4, 2021, the housing commission of the Department decided to satisfy the appeal.
By Order of the Head of the Department No. 366 dated May 11, 2021, the plaintiff was paid one-time housing payments excluding service periods from August 11, 2011 to February 14, 2014 in military unit No. 2038 and from February 8, 2014 to November 2014 in military unit No. 2037.
The plaintiff's complaint was dismissed by the defendant on September 23, 2021.
Judicial acts:
1st instance: the claim is partially satisfied.
Appeal: the decision of the court of first instance was changed, regarding the satisfaction of the claim was canceled and a new decision was made to dismiss the claim. The rest of the court's decision remains unchanged.
Cassation: the decision was overturned, the decision was upheld.
Conclusions:
The Court of first instance partially satisfied the claim, arguing that the absence of a report during service in other military units is not a reason for refusing to award one-time housing payments.
The Court of Appeal, overturning the court's decision and making a new decision to dismiss the claim, proceeded from the fact that the plaintiff had not submitted documents confirming recognition as in need of housing during his service in military units No. 2038 and No. 2037, a copy of the report and protocol on recognition as in need of housing.
The Board considered that the filing of the initial report is not the only and fundamental basis for determining the date of the beginning of the period of stay in the status of a person in need of housing in order to receive one-time housing payments. The initial report is the basis only if it is impossible to determine the specified day – the date of the beginning of the period of stay in the status of a person in need of housing in order to receive one-time housing payments.
Other arguments of the parties were also the subject of consideration by the court of first instance and were given a proper legal assessment.
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