On the recognition of illegal actions to record the act of commissioning the reconstruction of the house and the issuance of a permit for the reconstruction of the house, on the obligation to cancel the registration of the act of commissioning

No. 6001-23-00-6ap/993 dated 11/16/2023

Plaintiff: S.S.

Respondent: State Institution "Department of Architecture and Urban Planning"

The subject of the dispute: on the recognition of illegal actions to record the act of commissioning the reconstruction of the house and the issuance of a permit for the reconstruction of the house, on the obligation to cancel the registration of the act of commissioning

Review of the plaintiff's cassation complaint PLOT:

M.N. has been the owner of an apartment building and a land plot located at 13 N. Street (hereinafter referred to as the apartment building) since March 18, 2011.

On August 26, 2021, M.N.'s apartment building was sold to D.Y., who sold it to S.R. on September 3, 2021, and R.N. is currently the owner under a purchase and sale agreement dated February 2, 2022.

Plaintiff S.S. is an adjacent land user and a neighbor of this apartment building. During the period when the house was owned by M.N., she carried out the reconstruction of the house on the basis of permits in the field of construction. After the completion of construction work, the owner independently drew up an act of acceptance of the built facility on June 30, 2021 and sent it to the defendant for registration.

The reconstruction of the house was carried out on the basis of the decision of the State Institution "Department of Architecture and Urban Planning" (hereinafter    –    Department)    from

On April 14, 2021, on the issuance of a permit to M.N. for the reconstruction of an individual residential building at the address: city, N street, house 13.

The plaintiff, disagreeing with the Department's decision, appealed to the court with the above-mentioned requirements.

Judicial acts:

1st instance: the claim is partially satisfied.

The defendant's actions to register the act of commissioning the reconstruction of the house and to issue a permit dated April 14, 2021 for the reconstruction of the house at 13 N. Street in the city were recognized as illegal.

The claim to impose an obligation on the registration authority of the NAO "Government for Citizens State Corporation" to cancel the registration of the illegal act of commissioning the reconstruction of the house was refused.

Appeal: the decision of the court of first instance is overturned, the claim is returned.

Cassation: the decision of the judicial board is canceled. The case has been sent for new consideration to the court of appeal in a different composition of the court.

Conclusions: The court of first instance resolved the claim on its merits with a decision.

The court of Appeal, canceling the court's decision and returning the claim on the basis of subitems 11) and 15) of the second part of Article 138 of the CPC, proceeded from the following.

1.      By virtue of part five of Article 136 of the CPC, a person who has not participated in an administrative procedure, whose rights, freedoms and legitimate interests are affected by an administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of an administrative act, but no later than one year from the date of its adoption.

Based on the meaning and content of this provision, the one-year period specified in it is curtailed and cannot be restored.

The decision to grant a permit to M.N. for reconstruction was issued on April 14, 2021. The lawsuit was filed on September 23, 2022, that is, one year after the issuance of the administrative act, the actions of which she is challenging.

In accordance with the eighth part of Article 136 of the CPC, the inability to restore the missed deadline for applying to the court is the basis for returning the claim.

2. The plaintiff's claim regarding the recognition as illegal of the defendant's actions to register the act of commissioning the reconstruction of the house was not subject to consideration in administrative proceedings. It is motivated by the fact that the act of acceptance of the constructed facility into operation by the owner is not an administrative act on its own, and the defendant's action to register it cannot be administrative either, since they have not performed such actions in public relations.

Such conclusions of the court of appeal are erroneous and appropriate to the circumstances of the case.

Applying the consequences of the pre-trial period, the court of appeal did not assess whether the plaintiff belongs to persons who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act.

The court of appeal did not take into account that prior to the adoption of the contested decision of the Department dated April 14, 2021, which entered into force by the decision of the District court No. 2 dated June 20, 2019 (hereinafter referred to as the court's decision on the civil case), the claim of Sh.S. to M.N. was partially satisfied. It was decided to declare illegal the extension of the first and second floors above the attached ground floor to the common border (fence) to the apartment building

No. 13 on N. Street, M.N. is charged with demolishing the newly built extension of the first and second floors above the first to the common boundary (fence) measuring 3.5 by 4.1 meters.

By an additional court decision dated August 2, 2019, it was decided to oblige M.N. to restore the former borders (metal fence) at a distance of 4.1 meters.

The contested decision of the Department was issued by M.N., who is a debtor under a court decision in a civil case, which she used to enforce the said court decision.

The Department's decision directly affects the legitimate rights and interests of Sh.S., the claimant in the civil case, and accordingly she should have been involved in the administrative procedure when making the decision by the Department.

Therefore, the application of a preventive period for applying to the court to Sh.S. is unjustified.

The court's conclusion that the requirement regarding the recognition of the defendant's illegal actions to register the act of commissioning the reconstruction of the house is not subject to consideration in administrative proceedings is erroneous.

The plaintiff did not appeal the act of acceptance of the constructed facility into operation by the owner himself.

The court of appeal did not take into account that, according to the second part of Article 156 of the CPC, if an onerous administrative act is recognized as illegal, which at the time of the decision has already been executed or is being executed, the court has the right to force the defendant to cancel the execution and require actions to return the plaintiff to his original position within the time period specified in the decision.

Therefore, the plaintiff's requirement to register the acceptance certificate of the constructed facility was to be considered together with the main requirement.

In such circumstances, the court ruling is subject to cancellation, and the case is referred to the court of appeal for consideration on the merits.

Since the case is being sent for a new hearing, the cassation appeal regarding the upholding of the decision of the court of first instance is not subject to satisfaction.

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