On declaring illegal a reasoned refusal to divide a land plot and imposing the obligation to adopt a favorable act
No. 6001-24-00-6ap/1074 dated February 06, 2025
Plaintiff: J.K.
Defendant: KSU "Land Relations Department" (hereinafter referred to as the Department)
The subject of the dispute: the recognition of the illegal reasoned refusal to divide the land and the obligation to adopt a favorable act
Review of the plaintiff's cassation complaint PLOT:
The plaintiff, on the basis of a donation agreement dated June 24, 2016, is the owner of a land share with an area of 0.1000 hectares, a land plot located at the address: city of A., T. district, land category: land of a locality (cities, towns and rural settlements); purpose: farming; divisibility of the land plot – divisible. The total land area is 0.2500 ha, of which 0.1500 ha belongs to I.A. by right of ownership.
On August 15, 2023, the plaintiff, with the consent of the equity owner I.A., applied to the authorized body with an application for the division of the land plot.
On August 22, 2023, the Office issued a reasoned refusal, in view of the inconsistency of the division of the land plot with the General Plan of the city of A.
Not agreeing with the refusal, the plaintiff appealed to the court with the present claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are cancelled. A new decision has been made in the case. To satisfy K.K.'s administrative claim. To recognize as illegal the motivated refusal of the KSU "Management of Land Relations" in the divisibility of the land plot dated August 22, 2023. To impose on the defendant the obligation to eliminate the violation of the plaintiff's rights, taking into account the legal position of the court.
Conclusions: the local courts, rejecting the claim, motivated their conclusions by the fact that the land plot of the plaintiff and the equity owner I.A. are partially located in the area of public and business centers, the main part is in the area of estate development.
In accordance with the General Plan of the city of A., there are no agricultural lands on the territory of the city. The division of a land plot with a specific purpose for farming is contrary to current legislation.
According to article 51 of the Code, a land plot can be divisible and indivisible. A divisible land plot is one that, without changing its intended purpose and without violating fire, sanitary, environmental, construction and other mandatory norms and rules, can be divided into parts, each of which, after division, forms an independent land plot, otherwise it is indivisible.
The division of agricultural land plots is carried out taking into account the norms provided for in paragraph 3-1 of Article 97 of this Code.
The divisibility and indivisibility of the land plot are reflected in the identification document.
According to the act on the right of private ownership of the land plot No. 0132835, the plaintiff's land plot belongs to the category of lands of the settlement, with the intended purpose for farming.
This plot is divisible, while the owner is obliged to provide unhindered access to the land to operating services and enterprises for maintenance and repair of engineering networks.
Thus, there are no grounds preventing the division of the plaintiff's land plot.
Article 65 of the Code stipulates that land owners are required to use land in accordance with its intended purpose or functional area on the lands of settlements.
When K.A. (the plaintiff's father) and I.A.'s equity owner acquired this land plot on July 15, 2008, it was located on the territory of the T. district, region and corresponded to its intended purpose.
In accordance with the Decree of the President of the Republic of Kazakhstan dated April 16, 2014 No. 798, the boundaries of the city of A. were changed due to the inclusion of part of the land of the region, including the T. district, with an area of 6,525.7 hectares.
Since that period, the disputed land plot has become part of the lands of the city of A., in which agricultural land is not provided.
However, historical changes in the territoriality of the city of A. cannot interfere with the exercise of the plaintiff's legal rights, as well as restrict the ownership and use of land on grounds not provided for by law.
In 2022, the plaintiff applied to the local executive body 5 times with a request to change the purpose of the land plot, in each case he was refused on various formal grounds.
By the decision of the specialized interdistrict administrative court of September 6, 2022, the actions of the Akimat of the city of A. to refuse to accept the application of Zh.K. for issuing a decision to change the purpose were recognized as illegal.
The court ordered the akimat of the city of A. to eliminate the violations of legitimate rights and interests within a month by accepting for consideration an application and documents for issuing a decision to change the purpose of the land plot.
According to the plaintiff's representative, the judicial act has not yet been executed, and the purpose of the land plot has not been changed. The equity owner also refrains from contacting the authorized bodies for a change of purpose.
Under these circumstances, the judicial board concluded that when considering the plaintiff's application, the defendant had abused formal requirements, and the plaintiff had been denied the division of the land plot in the absence of legitimate grounds.
The contested administrative act of the defendant does not comply with the principles of administrative procedures and administrative proceedings, and cannot entail negative legal consequences for the plaintiff, and therefore is subject to cancellation.
Considering that the case did not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the decision of the court of first instance and the decision of the court of appeal and make a new decision to satisfy the claim.
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