On challenging the decision on the legalization of a land plot

No.6001-23-00-6ap/2376 dated October 26, 2023

Plaintiff: LLP "A"

The defendant: akim of the city

The subject of the dispute: on challenging the decision on the legalization of the land plot dated September 3, 2007

Review of the plaintiff's cassation complaint PLOT:

The plaintiff filed the above-mentioned claim with the court, arguing that he is the owner of a land plot at the address: city of U., E. Street, 48, measuring 0.3629 hectares with the intended purpose "for the construction and maintenance of buildings." However, part of its territory has been illegally legalized by Zh.D. In this regard, the plaintiff believes that the decision on legalization of September 3, 2007 is illegal, and asked the court to cancel it.

Judicial acts:

1st instance: the claim was returned on the basis of subparagraph 15) of the second part of Article 138 of the CPC in connection with the refusal to restore the missed time limit for filing a claim.

Appeal: the ruling of the court of first instance is left unchanged.

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

Conclusions: After studying the case materials and hearing the participants in the court session, the judicial board comes to the following conclusions.

1.      The refusal to restore the missed deadline for filing a claim and, accordingly, the return of the claim was motivated by the fact that:

a) the plaintiff was aware of the violation of his rights in November 2022, when his employees saw a broken fence while walking around the territory. The plaintiff could have found out about the contested act from that time, but he took any measures.;

b) after the legalization of the plot on July 2, 2019, J.D. clarified the address of the property and currently the site has been assigned the address: 86 K. Street, city of U. and coordinated the land plot, whereas the plaintiff has not coordinated the plot belonging to him, the boundaries of the property have not been moved to the coordinate system until today;

c) at an on-site court hearing, it was established that the disputed plot borders on two sides with the plots provided for individual residential construction, and the disputed plot was sold by Zh.D. under the purchase and sale agreement of K.A. on November 17, 2020;

d) according to the fifth part of Article 136 of the CPC, a person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the 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

an administrative act, but not later than one year from the date of its adoption. Based on the meaning and content of the said norm, the procedural term established by Article 136 of the CPC is not subject to restoration.

2. The Court of Appeal fully supported the conclusions of the SMAS and indicated that the plaintiff was not a participant in the administrative procedure. The claim was filed in court in May 2023, while the deadline for filing a claim in accordance with part five of Article 136 of the CPC expired on September 3, 2008. The plaintiff's arguments that he had not previously been aware of the contested decision, which he learned about only in March 2023, and the appeal court did not take into account the request for reinstatement of the term.

3. Having checked the above and other conclusions of the local courts, the judicial board considers that they are based on a misinterpretation of the substantive and procedural law that should have been applied in the context of the established circumstances of the case.

As follows from the case file:

a) according to the decision of the akim of the city No. 324 dated March 18, 1997, the plaintiff owns a plot at the address: city of U., E. Street, 48, with an area of 0.3629 hectares

"for the construction and maintenance of buildings";

b) on the basis of the decision of the akim of the city No. 1163 dated September 22, 2000 and the certificate of division of the land plot No. 15050 dated November 24, 2005, the specified plot was transferred to private ownership by the plaintiff.

The above-mentioned acts are not disputed by anyone, have not been declared illegal, and therefore remain legally binding. This means that the plaintiff continues to be the owner of his land plot. There is no evidence to the contrary in the case file and the contested court rulings. Consequently, as the rightful owner of his land plot, the plaintiff is a participant in the administrative procedures related to this plot, despite the fact that this was not mentioned when the disputed plot was provided to Zh.

In view of such circumstances, the judicial board considers that the local courts unlawfully applied the pre-trial period for filing a lawsuit provided for in part five of Article 136 of the CPC, mistakenly believing that the plaintiff was not a participant in the administrative procedure for granting land use rights to another person, while the plaintiff's private property right to this site was not lost.

Thus, the judicial board considers that in this case the local courts misinterpreted and applied the rules of procedural law, which led to the unlawful return of the claim. This, in turn, is the basis for canceling the court rulings disputed by the cassator and sending the case to the court of first instance for a new hearing.

At the same time, the cancellation of the above-mentioned rulings does not prevent the court of first instance from returning to discussing the procedural time limits for filing a claim in the context of the circumstances of the case and according to the rules set out in parts one, two, three, six, seven of Article 136 of the CPC, as well as depending on the subject and the basis of the filed claim.

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