On challenging the administrative act of the akim of the city
No. 6001-24-00-6ap/2230 dated January 28, 2025
Plaintiff: L.S.
The defendant: akim of the city
The subject of the dispute: on challenging an administrative act
Review of the defendant's cassation complaint PLOT:
L.S. from February 26, 2018 to December 2, 2024, was the owner of a land plot with a total area of 0.1125 hectares, with the intended purpose "for gardening and cottage construction", located in the city of U., horticultural association "M.".
On November 22, 2023, the plaintiff applied to the mayor of the city for an additional land plot measuring 0.0631 hectares, since she planted perennial fruit trees on the requested land plot.
By a decree of the Akimat dated November 17, 2023, the plaintiff was denied the right to land use, due to the suspension until December 31, 2026 of the issuance of agricultural land, as well as the failure to establish the boundaries of the urban and suburban areas, horticultural associations.
Judicial acts:
1st instance: the claim is satisfied. It was decided to declare illegal and repeal the decree of November 17, 2023, to oblige the akim of the city of U. eliminate violations of L.S.'s rights and restore them by reviewing the application in accordance with the rules of Article 43 of the Land Code of the Republic of Kazakhstan.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts have been changed. Regarding the obligation imposed on the defendant to eliminate violations of L.S.'s rights and restore them by reviewing the application in accordance with the rules of article 43 of the Code, it was canceled. In this part, a new decision was made to assign the duty to the Akim of the city of U. to complete the administrative procedure.
Conclusions: the local courts, satisfying the claim, motivated their conclusions by the fact that the requested land plot adjoins the territory of the plaintiff's land plot and is located in a cottage community within the city of U.
Since the acquisition of the land plot, the plaintiff actually uses an additional plot on which gardening is conducted.
The Judicial Board agreed with the conclusions of the local courts regarding the unreasonableness of the refusal of the local executive body.
The land claimed by the plaintiff is located within the boundaries of the settlement of the city of U. and, according to the Master Plan, is classified as suburban areas.
In accordance with paragraphs 1, 2 of Article 1 of the Code, the land fund of the Republic of Kazakhstan, in accordance with its intended purpose, is divided into the following categories:: 1) agricultural lands; 2) lands of settlements (cities, towns and rural settlements); 3) lands of industry, transport, communications, for the needs of space activities, defense, national security, nuclear safety zones and other non-agricultural purposes; 4) lands of specially protected natural territories, lands of health, recreational and historical and cultural purposes; 5) forest fund lands; 6) water fund lands; 7) reserve lands.
These lands are used in accordance with their intended purpose. The legal regime of lands is determined based on their belonging to a particular category and permitted use in accordance with the zoning of lands (territories).
Agricultural lands are recognized as lands provided for the needs of agriculture or intended for these purposes. Agricultural lands include agricultural lands and lands occupied by on-farm roads, communications, enclosed reservoirs, a land reclamation network, buildings and structures necessary for the functioning of agriculture, as well as other lands (paragraphs 1,2 of Article 97 of the Land Code).
Article 107 of the Code stipulates that land plots provided for the development of cities, towns, villages and other settlements belong to the category of lands of settlements. The lands of localities are delimited from the lands of other administrative-territorial entities by the city line, village line, and rural settlement line and are divided into the following functional zones: 1) housing; 2) social; 3) commercial;
another one.
Agricultural lands are included in a different zone. Article 49 of the Law of the Republic The Law of Kazakhstan "On Architectural, Urban Planning and Construction Activities" also provides that in some cases residential areas may include the territories of horticultural and country associations located within the boundaries (boundaries) of a settlement.
Therefore, it is incorrect to classify the requested land plot as agricultural land, the provision of which is subject to a moratorium.
The absence of boundaries of horticultural societies is also not a reason for refusing to provide a land plot.
Thus, the grounds for refusal indicated by the defendant in the contested administrative act are not based on the current legislation, and are reasonably recognized by local courts as illegal.
At the same time, judicial acts regarding the imposition on the defendant of the obligation to eliminate violations of L.S.'s rights and restore them by reviewing the application in accordance with the rules of Article 43 of the Code are subject to correction.
These conclusions of the lower courts are erroneous, since the unreasonableness of an administrative act does not entail an unconditional decision to grant the plaintiff a land plot.
In accordance with article 155 of the CPC, the recognition of an administrative act or part of it as illegal entails its cancellation, as well as the cancellation of all legal consequences arising from it or part of it, unless otherwise specified in the court decision.
Therefore, if an administrative act is cancelled, the defendant must complete the initiated administrative procedure in accordance with the norms of current legislation.
Considering that the case did not require the collection and additional verification of evidence, the judicial board considered it necessary to amend the judicial acts of the local courts, in terms of imposing on the defendant the obligation to eliminate violations of rights and restore them by reviewing the application under the rules of Article 43 of the Code - to cancel. To make a new decision on assigning the akim the responsibility to complete the administrative procedure.
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